DPP v Ryan & Rooney
 IECA 2
THE COURT OF APPEAL
230/2013 & 231/2013 - Ryan Irvine Hogan - Court of Appeal - 19/1/2015 - 2015 IECA 2
MISUSE OF DRUGS ACT 1977 S15
MISUSE OF DRUGS ACT 1977 S15(A)
CRIMINAL JUSTICE ACT 1993 S2
DPP v BYRNE
DPP v MCCORMACK 2000/8/3024
DPP v REDMOND 2000/8/3164
MISUSE OF DRUGS ACT 1977 S27
CRIMINAL JUSTICE ACT 2007 S33
MISUSE OF DRUGS ACT 1977 S27(3A)
MISUSE OF DRUGS ACT 1977 S27(3B)
MISUSE OF DRUGS ACT 1977 S27(3C)
MISUSE OF DRUGS ACT 1977 S27(3D)
MISUSE OF DRUGS ACT 1977 S27(3E)
MISUSE OF DRUGS ACT 1977 S27(3F)
MISUSE OF DRUGS ACT 1977 S27(3G)
MISUSE OF DRUGS ACT 1977 S27(3H)
MISUSE OF DRUGS ACT 1977 S27(3I)
MISUSE OF DRUGS ACT 1977 S27(3J)
MISUSE OF DRUGS ACT 1977 S27(3K)
MISUSE OF DRUGS ACT 1977 S15(B)
CRIMINAL JUSTICE ACT 1999 S5
MISUSE OF DRUGS ACT 1977 S27(3D)(A)
MOLYNEUX v AG 1997/10/3352
DPP v GERAGHTY UNREP CA 10.12.2014 2014 IECCA 2
DPP v BOTHA 2004/14/3210 2004 IECCA 1
DPP v RENALD UNREP CCA MURPHY 23.11.2001 2001/8/2140
DPP v LONG 2009/17/4110 2008 IECCA 133
DPP v DUFFY UNREP KEANE 21.12.2001 2001/7/1809
DPP v LERNIHAN UNREP MURPHY 18.4.2007 2007/19/3889 2007 IECCA 21
DPP v HOGARTY UNREP CCA 21.12.2001 2001/7/1848
DPP v MCGINTY 2006 IECCA 37
DPP v JERVIS & DOYLE UNREP CCA 25.3.2014 2014 IECCA 14
DPP v ALEXIOU 2003/13/2830
MISUSE OF DRUGS ACT 1977 S27(C)
MISUSE OF DRUGS ACT 1977 S27(D)
Criminal Law – Drug Offences – Sentencing – Leniency
1. Following the hearing of this application on the 8 th December, 2014, the Court delivered an ex tempore judgment in which it held that the application made by the Director had succeeded and that the sentences imposed on the respondents were unduly lenient. In accordance with the jurisprudence and established practice the Court afforded the parties an opportunity of putting forward relevant updated material on the issue of sentence. The Court then adjourned the matter for determination of the appropriate sentence to be imposed on the respondents and said that it would provide a fuller statement of the reasons for its decision on the application. This the Court now does.
2. In the early hours of the morning of 5 th April 2012, a truck driven by Mr. Ryan entered the car park of the White Horse Public House in Finglas. Mr. Rooney arrived in his partner's Ford Mondeo and Mr. Ryan handed him a holdall which was then placed in the boot of the car. Mr. Rooney had earlier gone into and out of the car park and then driven away. The Gardaí who had the location under surveillance stopped Mr. Rooney some distance from the car park. It transpired that the holdall contained a consignment of drugs comprising 4,464 grammes of heroin with a market value of €1.2 million and 227 grammes of cocaine valued at almost €16,000. When stopped by the Gardaí Mr. Rooney immediately admitted there were drugs in the boot of his car and that he had collected them from a man at the public house in Finglas. He had no idea as to the nature of the drugs. At subsequent interview Mr. Rooney stated he had been approached by a man at the Social Welfare office to do the job and he was told there would be €500 waiting for him in a car in a City West car park where he was to drop the bag.
3. Mr. Ryan said that he had been approached when sitting in his truck in the U.K. and he was told he would be paid between €2,000 and €3,000 for delivering the holdall which he believed contained cigarettes. He later accepted in his third interview that at the time of handling it over in the car park because of the holdall's weight he realised that it could not have been cigarettes and he thought it was probably cannabis. Certainly, he did not know it was heroin which was a drug - he thought - was liquid rather than solid in form. On a fourth interview he accepted that he suspected that there were drugs in the holdall from the outset. His motivation was to try and help his partner with a debt of €86,000 owed to the Department of Social Welfare.
4. The accused men were arrested and charged in each case with an offence under s. 15 15A of the Misuse of Drugs Act 1977 (as amended) and came in due course before the Circuit Court where they pleaded guilty on the 11 th March 2013. There were sentence hearings on the 29 th July and 11 th October, 2013.
5. Mr Ryan was a 52-year old truck driver with a good work history. He has two grown up children and is in a longstanding relationship with a partner who has a child whom he has nurtured. He has no previous convictions and according to the investigating officer, Detective Garda Molloy, is very unlikely to re-offend. He was very upset in the course of his interview, showing genuine remorse. Mitigating features in his case were that he did not add value to the drugs transported and would not have received any share in the profit, his early plea of guilty and material assistance, good work history, financial strain, genuine remorse and that he was unlikely to re-offend. The court had in addition good testimonials from employers and neighbours.
6. Mr Rooney was a labourer/mechanic by occupation. He was in his mid 60's and had four grown up children. He had experienced financial difficulties, owing some €22,000 to his bank and credit union. He had some medical issues. He also had no previous convictions. Mitigating features were the early plea and material assistance. He admitted knowing that he was transporting drugs, although he had no idea of the type of drug or its potential value. He cooperated with the investigation as far as he could subject to having regard for his family's safety. He had sincere remorse and was unlikely to re-offend. He also provided impressive testimonials.
7. The learned sentencing judge adjourned sentencing for a probation report. In giving his judgment he referred to the maximum sentence and the presumptive mandatory minimum and to the import of the legislation. He considered the mitigating and aggravating factors in both cases. He took into account their early pleas, remorse and the fact that both were unlikely to re-offend. They also both had good testimonials. The judge said that he must have regard to the devastation caused to society by drugs. He said that he had the authority under the Act not to impose the minimum sentence and could do this because of what was in the probation report and the way the respondents had met the case. Having regard to the seriousness of the offence, he would impose a ten year sentence in each case and suspend it in its entirety for seven years. Mr. Rooney was also ordered to take part in a restorative justice programme.
8. In light of these sentences, the Director of Public Prosecutions brings an application to this Court under s. 2 of the Criminal Justice Act 1993, for review of the sentences on the ground that they were unduly lenient and, if appropriate, to have each of them quashed and replaced by another sentence that this Court considers appropriate. The Director submits that the sentences represented a substantial departure from what would be considered appropriate in all of the circumstances; that the learned sentencing judge had excessive regard to the mitigating circumstances in deviating from the mandatory minimum and in then suspending the totality of the sentence; he had insufficient regard to the aggravating factors, including the manner in which the drugs had been transported and their value; that the facts were not sufficiently exceptional to justify the imposition of a suspended sentence for a s. 15 A offence; and that the sentences contained no deterrent effect.
9. Counsel for each of the respondents submitted that the sentence was not unduly lenient and that the applicant had failed to identify any error in principle that would give rise to the statutory jurisdiction to review the sentences imposed.
10. Section 2 of the Criminal Justice Act 1993, in so far as relevant provides:-
"(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the 'sentencing court') on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.
(3) On such an application, the Court may either -
(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or
(b) refuse the application."
11. In Director of Public Prosecutions v. Byrne at p. 287, the Court of Criminal Appeal stated four principles to be applied when a review of sentence under s. 2 of the Act of 1993 is brought:-
The onus of proof to show that the sentence was 'unduly lenient' rests on the Director of Public Prosecutions
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