DPP v Rattigan
 IECA 7
THE COURT OF APPEAL
12/2010 - O'Donnell Moriarty White - Court of Criminal Appeal - 29/7/2015 - 2015 IECCA 7
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.
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.
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.
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.
5. The appellant contends that the trial judge made an error in principle in imposing these sentences, hence this appeal.
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.
7. In order to consider this and the other grounds of appeal it is necessary to set out the circumstances of the two offences.
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.
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.
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.
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.
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 that she had a far greater role to play in the matter.
13. The appellant gave evidence and her counsel put to her that she did not make full admissions at the interview with the police, but asked her if she accepted full responsibly of the offence at this stage. She answered in the affirmative, and indicated that she now accepted full responsibility.
14. The co-accused in respect of the s. 15A offence was dealt with by the same judge on the 25 th February, 2013, almost three months after he sentenced the appellant. The co-accused also pleaded guilty to an offence under s. 15A of the Misuse of Drugs Act 1977 as amended. The Garda evidence referred to the sentence which had been imposed upon the appellant and outlined the circumstances of what occurred.
15. The garda officer admitted that although the co-accused was known to the gardaí he was not "on the radar" in relation to this incident, but rather it was the appellant on whom they were focused. The car was owned by her. The co-accused and the appellant had a number of children together over the years and were described as being "partners on and off for many years". The appellant was described as the more dominant partner in that relationship. Evidence was recounted of what took place at the interview with the Gardaí.
16. In cross examination the Garda witness said this;
As I said, I think he was well aware of what was going on in the night in question. I am sure he would have profited in some way from being there and in being in a relationship with Jenna Heaphy. He certainly was not the main instigator, and I don't think he would have been capable of organising what Jenna organised. So, in that respect he would be …… ....
Would he be a bit of an eejit? Would that be?
17. The trial judge in imposing sentence on the co-accused said inter alia:
"Well, I have listened to what Det. Gda. Kennedy has said in particular about you and I think this is a case where I do not have to apply the rigours of s. 15A. Ms. O'Connell has asked me to approach the case in a particular way, which is on the basis of the decision of the Director of Public Prosecutions v. McGinty and Det. Gda. Kennedy, I thought was very fair to you. He said he did not see you as a significant player on their radar. So, whatever involvement you had was of a very limited nature. I suppose the involvement was that your partner was up to her eyeballs in it … seem to me to be a genuine enough man and concerned about your children; you have three small children. And your probation officer, while she thinks you are at a high risk of reoffending, I think Det. Gda. Kennedy said that that is not really the case. You have been behaving yourself since 2010, you have been to Tabor Lodge. You have had various assistance. You have been to Heron House and you have been doing a lot of things that the people there want you to do. I accept what Det. Gda. Kennedy says that you are not a major player in this. It is just that your partner was involved in it, and you decided to accept responsibility. Whether I am right or wrong,...
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