DPP v Rattigan

 
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[2015] IECA 7

THE COURT OF APPEAL

Kelly J.

Birmingham J.

Sheehan J.

9CCA/13
DPP v Rattigan

Between

Jenna Heaphy
Appellant

And

The People at the Suit of the Director of Public Prosecutions
Respondents

12/2010 - O'Donnell Moriarty White - Court of Criminal Appeal - 29/7/2015 - 2015 IECCA 7

Introduction
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1. This is an appeal against the severity of sentences imposed on the appellant in the Cork Circuit Criminal Court on the 3 rd December, 2012. On that occasion the appellant pleaded guilty to two offences, the first of which occurred on the 23 rd May, 2010 and the second on the 1 st September, 2010.

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2. In respect of the first of the offences, the appellant pleaded guilty to possession of drugs, ie. heroin in the amount of €11, 190 contrary to s. 15 of the Misuse of Drugs Act 1977.

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3. In respect of the offence of the 1 st September, 2010, the appellant pleaded guilty to possession of drugs in the amount of €16, 693 contrary to s. 15A of the Misuse of Drugs Act 1977, as amended.

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4. The judge imposed a sentence of five years imprisonment in respect of the first offence and a concurrent sentence of eight years imprisonment on the second offence. He suspended the final two years of the eight year sentence.

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5. The appellant contends that the trial judge made an error in principle in imposing these sentences, hence this appeal.

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6. One of the main grounds of appeal relied upon is the disparity between the sentence imposed on the appellant and that imposed on her co-accused who also pleaded guilty to as. 15A of the Misuse of Drugs Act 1977 charge in respect of the incident on the 1 st September, 2010. He was sentenced to six years imprisonment on that charge, but it was suspended in its totality for a period of three years. That sentence has not been the subject of any complaint on the part of the DPP as to its leniency.

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7. In order to consider this and the other grounds of appeal it is necessary to set out the circumstances of the two offences.

The Offence of the 23 rd May. 2010.
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8. On the 23 rd May, 2010, officers from the Divisional Drugs Squad stopped the appellant and the third party in her car on the South Link road in Cork. Acting on confidential information, the drugs squad officers believed that the appellant and the third party had a substantial quantity of heroin concealed on their persons.

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9. Initially the appellant refused to consent to being searched and was arrested and brought to Togher garda station for the purpose of a search. She was subsequently arrested under s. 25 of the Misuse of Drugs Act and a medical practitioner was called to the station because of concerns about her medical condition. She was brought to the South Infirmary where she refused medical treatment. She was returned to Togher garda station where after some time a packet of heroin containing 74.6grams was produced by her. It had a street value of €11,190.

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10. The appellant was subsequently interviewed by gardaí and admitted to travelling with another person to England on the previous day. She accepted that she had booked the flights for both her and the third party and that she was bringing drugs back to this jurisdiction to pay off a drugs debt that she had incurred.

The Offence of the 1 st September. 2010.
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11. On the 1 st September, 2010, officers from the Divisional Drugs Unit were monitoring the activities of the appellant. She was stopped while driving her own vehicle at approximately midnight. She was accompanied by her partner who was her co-accused. Both were taken to the Bridewell garda station for the purpose of a search under s. 23 of the Misuse of Drugs Act. The appellant was found to have a small single deal of heroin concealed in her bra. She was in possession of €1,435 in cash and during the course of a search of her motor car 111 grams of heroin were recovered from the passenger footwell of the vehicle. The heroin had a street value of €16.693.

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12. The appellant was interviewed on three separate occasions. Initially, she refused to cooperate and refused access to a mobile phone that had been seized from her. She would neither switch the phone back on or give the gardaí the code. They ultimately obtained it and found on the phone numerous text messages relating to the sale and supply of heroin. The garda evidence was that the phone clearly showed that the appellant was organising with an unknown person in Dublin for the collection of this heroin by a third party. The phone traffic showed her negotiating a price for the drugs and describing the person who was travelling to Dublin to collect the heroin. She subsequently gave to the Gardaí what they described as "an account which showed some culpability on her part, but it signficantly played down her role in this offence". She stated that when stopped she was driving her partner to a location on the north side to hand over the drugs. She would not identify to whom they were to be handed over and said she was not aware of how much drugs there were. The Gardaí did not accept this version of events. At the hearing in the court below, the garda view given in evidence was that the appellant orchestrated the offence and arranged for the drugs to be collected in Dublin. She paid for them and was going to be involved in the distribution of those drugs on their arrival back in Cork. She claimed that the €1,435 in cash which she possessed was for rent, but the garda view was that it was the proceeds of drug dealing. In cross examination, the Garda officer reiterated that whilst the appellant accepted some responsibility in respect of this offence, he was satisfied that from her mobile phone it was shown...

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