DPP v Samuilis

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 11 October 2018
• Neutral Citation: [2018] IECA 316
• Docket Number: Record No: 245CJA/17
• Court: Court of Appeal (Ireland)
• Date: 11 October 2018

[2018] IECA 316

THE COURT OF APPEAL

Edwards J.

Birmingham P.

Edwards J.

Hedigan J.

Record No: 245CJA/17

IN THE MATTER OF S.2 OF THE CRIMINAL JUSTICE ACT, 1993, AND IN THE MATTER OF:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

V

ARTURAS SAMUILIS

Respondent

Crime & sentencing – Misuse of drug offences – Possession for purpose of selling cannabis – Application by DPP for review of sentence

Facts: The appellant had pled guilty to two counts of possession of cannabis for the purpose of selling contrary to s 15A of the Misuse of Drugs Act 1977. Sentences of 5 years' imprisonment with an element suspended were handed down. The DPP now applied for review of the sentences on the basis they were unduly lenient.

Held by the Court that the application would be allowed. The Court was satisfied that the sentencing judge had failed to determine the correct level of headline sentence, and as such the sentences had failed to achieve the objective of deterrence. On that basis, the respondent would be resentenced.

JUDGMENT of the Court delivered the 11th of October 2018 by Mr. Justice Edwards .

Introduction

1 On the 30th of May 2017, the respondent to this appeal pleaded guilty to two counts of unlawful possession of a controlled drug, to wit cannabis, with a market value of €13,000 or more, for the purpose of selling or otherwise supplying it to another, contrary to s. 15A of the Misuse of Drugs Act, 1977, as amended and inserted ('the Act of 1977'). The remaining six counts on the Bill of Indictment were to be taken into consideration.

2 On the 17th of October 2017, the respondent was sentenced to two concurrent sentences of five years" imprisonment in respect of Counts no's 7 & 8 on the Indictment, with each sentence backdated to the 31st of December 2016, the date at which the respondent was arrested and entered into custody. The last two years of each sentence were suspended for a period of two years on the condition that the respondent remain under the care of the Probation Service during that period.

3 The applicant, namely the Director of Public Prosecutions, now seeks a review of the said sentences under s. 2 of the Criminal Justice Act 1993 on the basis that they were unduly lenient.

Background facts

4 Detective Garda Andy Barron gave evidence at the 'full-facts' sentence hearing on the 17th of October 2017. He gave evidence that, on the 31st of December 2016, he and his colleague, Garda Sean Finnegan, were patrolling the Castle Park Estate in Dundalk, Co. Louth, when they noticed that the occupants of a green Audi 6 car, which was travelling in front of the patrol car, appeared to be acting suspiciously. This car then turned right on Castle Road into a yard, which was no longer in use for any business, but which led to the back of some houses on that particular side of Castle Road. The evidence was that the person in the passenger seat of the car ('the co-offender') appeared to be conscious of the presence of the Garda patrol car, whilst the driver, the respondent, was noted to be monitoring the patrol car in his rear-view mirror. The patrol car subsequently left but returned to the yard ten minutes later to find the suspicious car parked directly behind the back of house number 23, Castle Road Estate. At this time, the respondent was on his own in the car. The Gardaí approached the car, noticing that the respondent was 'fiddling in a nervous fashion with two mobile phones'. The Gardaí asked the respondent why he was there, to which he replied that he had stopped in order to make a call. The evidence was that both Detective Barron and Garda Finnegan found this response 'puzzling', given what they had just observed. Further, Garda Finnegan had noticed that the door to house number 23 had been slightly open on their arrival, but that a male had looked out through the opening and, having seen that Gardaí were outside, immediately closed the door.

5 Following further inquiries made by the Gardaí in respect of where the person in the front seat passenger seat had gone, the respondent responded that he had dropped him off some distance away. The Gardaí, knowing this response to be false, and having regard to the suspicious nature of the situation as a whole, decided that it was necessary to conduct a search of the respondent and his vehicle under the section 23 of the Act of 1977. This search led to discovery of four sets of keys in the vehicle, being keys for 23 Castle Road, keys for a premises at 24 St. Patrick's Road, Drumcondra, Co. Dublin, and keys for a premises at 84 Dublin Street, Dundalk. It was established in evidence that these properties were rented properties, the locks of which had been changed and the keys were for the new locks.

6 Detective Barron used one of the keys obtained to open a rear garden door at 23 Castle Road, before then using another key to open a garage door in the back garden. Both Gardaí then observed a large pile of black refuse sacks which were full and tied closed. They also noticed a strong smell of cannabis emanating from them. Materials, plastic trays and electrical items were also observed which both men concluded were being used for the cultivation of cannabis plants. Detective Barron then proceeded to open one of the refuse bags which was full of cannabis. The respondent, after caution stated that he had no knowledge of any of these items. Subsequently, a search warrant was obtained by Detective Barron under s. 23 of the Act of 1977, for the premises at 23 Castle Road.

7 During this search a cannabis cultivation operation was found at the premises. Another person was also found at the premises who Detective Barron believed to be the co-offender. The evidence was that what was found at the premises was 'a sophisticated cannabis cultivation operation', and a total of 103 cannabis plants with a market value of €92,280, plus 150 sapling plants were seized, together with 85 grams of cannabis herb worth €1,700, and 13.7 grams of cannabis herb worth €274. Mature plants, i.e. plants that were ready for harvesting, were worth c €800 each. Each sapling had a potential to be also worth that much when mature and harvested. The total value of drug material seized, including the potential street value of all of the immature saplings, was said to be €210,000.

8 Following a 'detailed, careful, thorough and forensic examination of various items' found at 23 Castle Road, the Gardaí found various items linking the respondent to the properties at 24 St. Patrick's Road, Drumcondra and 84 Dublin Street, Dundalk namely photographs on the respondent's phone of landlord's details and rent details for these premises. CCTV footage was also obtained, showing the respondent and the co-offender at a Woodies DIY on the 30th of December 2016, purchasing items thought to be associated with the cultivation of cannabis. A search warrant was also obtained for a rented property in which the respondent lived, 6 Bryanstown Court, Drogheda, under s. 26 of the Act of 1977, in which a number of probative items were found including a business card related to a premises known as 'The Grow Shop' a place well known to members of the Gardaí that individuals might go to obtain paraphernalia that would be associated with cannabis cultivation. On foot of the search of the respondent's house, lists for materials; floorplans in relation to plant pots; a tick list for hydroponic and growth products; a tick list for nutrients, grow products, and materials for cultivation, were also found.

9 As a result of the materials found in the course of these searches, the respondent was linked to the premises at 84 Dublin Street and a search warrant was accordingly obtained for this house. This search yielded €6,405 worth of cannabis herb found in a vacuum pack bag in an upstairs area of that house. This search also provided the Gardaí with material linking the respondent with the premises at 24 St. Patrick's Road, Drumcondra. A search warrant was ultimately obtained in respect of this premises and, on the 4th of January 2017, it was searched and discovered to be another grow house. A total of 180 mature cannabis plants were found there with a total street value of €144,000.

10 The respondent was arrested and detained for interview, but maintained his right to silence during the one interview conducted with him by Gardaí. He was ultimately charged, entered a plea and was sentenced in the terms as outlined above.

Respondent's personal circumstances

11 The respondent was born on the 11th of May 1983, making him 34 years-old at the time of sentencing. He is a Lithuanian National, and had moved to the United Kingdom in 2003 where he resided for 12 years before moving to Ireland in or around 2015. He is a single man and lives in a rented property alone. He did not progress to third level education and has spent most of his working life working either as a truck driver or a van driver.

12 During the plea in mitigation, defence counsel submitted that, in 2015, whilst the respondent was in Ireland, his sister died at thirty-six-years-old due to a heart condition. This tragedy, in the words of his counsel, 'sent him off the rails', in that he started making very poor life choices, causing him to veer towards the criminal lifestyle that he now finds himself involved in.

13 During cross-examination, Detective Barron accepted that the most important pieces of incriminating evidence against the respondent were on his mobile phone and the respondent freely gave up his passcodes to same, thereby, according to his counsel, demonstrating his co-operation with the Gardaí investigation.

14 During cross-examination, Detective Barron stated that he believed the respondent '[T]o be an organiser. Perhaps not the head of the operation but to be the organiser and the arranger of the different addresses to sort out the lease agreements, the rental...