DPP v Sarsfield

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 15 October 2019
• Neutral Citation: [2019] IECA 260
• Docket Number: [138CJA/18]
• Court: Court of Appeal (Ireland)
• Date: 15 October 2019

SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

STEPHEN SARSFIELD

RESPONDENT

[2019] IECA 260

The President

Whelan J.

McCarthy J.

[138CJA/18]

THE COURT OF APPEAL

Sentencing – Possession of drugs with a value of €13,000 or more with an intention to supply – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The applicant, the Director of Public Prosecutions, applied to the Court of Appeal seeking to review on grounds of undue leniency a sentence that was imposed in the Dublin Circuit Criminal Court. The sentence sought to be reviewed was one of seven years imprisonment that was imposed following the entry of a plea of guilty to an offence contrary to s. 15A of the Misuse of Drugs Act 1977 being the possession of drugs with a value of €13,000 or more, with an intention to supply. The respondent, Mr Sarsfield, was found in possession of diamorphine and cannabis with a combined value of €4.1m. In arriving at the sentence of seven years, the sentencing judge took into account certain other offences relating to the possession of a stun gun. The Director’s position was that this was not an appropriate case in which to impose a sentence less than the mandatory presumptive minimum.

Held by the Court that, having had regard to the seriousness of the offending in issue, and the enormous scale of the activity interrupted by Gardaí, the sentence imposed represented a substantial departure from what was to be expected and was, indeed, unduly lenient.

The Court held that a pre-mitigation or headline sentence of fifteen years would have been appropriate. Having given full allowance for all the factors present in favour of Mr Sarsfield, including his plea of guilty and the absence of relevant previous convictions, the Court believed that the ultimate sentence could not be less than the mandatory presumptive minimum, and indeed, a sentence greater than the mandatory presumptive minimum could be justified. However, in a situation where the Court was intervening to resentence, it confined itself to imposing a sentence of ten years imprisonment. The Court did so in a situation where it could not see any basis for concluding that the imposition of the presumptive minimum sentence would, in all the circumstances of the case, be unjust. Accordingly, the Court quashed the sentence imposed in the Circuit Court and substituted for it a sentence of ten years imprisonment.

Appeal allowed.

JUDGMENT of the Court delivered on the 15th day of October 2019 by Birmingham P.

Background

1 This is an application brought by the Director of Public Prosecutions seeking to review on grounds of undue leniency a sentence that was imposed in the Dublin Circuit Criminal Court. The sentence sought to be reviewed is one of seven years imprisonment that was imposed following the entry of a plea of guilty to an offence contrary to s. 15A of the Misuse of Drugs Act 1977 (as amended) being the possession of drugs with a value of €13,000 or more, with an intention to supply. The respondent was found in possession of diamorphine and cannabis with a combined value of €4.1m. In arriving at the sentence of seven years, the sentencing judge took into account certain other offences relating to the possession of a stun gun.

2 The background facts are that on 17th July 2017, Gardaí were in possession of confidential information suggesting that there was an operation in progress involving a large quantity of drugs in the Ballyfermot area. There was further information that there was a Heavy Goods Vehicle (“HGV”) parked outside the house where the activity was said to have been taking place. Members of An Garda Síochána went to Ballyfermot Drive where they engaged in surveillance of the area. Upon their arrival at the scene, they found a large curtain-sided HGV parked outside No. 3 and opposite No. 10. They also observed a large white Mercedes van parked in the driveway of No. 10. Adjoining No. 10 was a large garage, the import of which will soon become apparent.

3 At approximately 1.50pm, the respondent was observed moving the HGV into position on the footpath immediately opposite No. 10. At the same time, a white Peugeot van pulled up and parked in front of the truck. Shortly thereafter, two individuals referred to as Mr. C and Mr. D arrived in separate vehicles. These men were seen removing flat pack boxes from the HGV and bringing them into the garage. Mr. C left the scene at around 2.38pm. Mr. Sarsfield is said to have remained on the premises for the entirety of the afternoon in question.

4 The Gardaí had, meanwhile, obtained a search warrant in respect of the garage and, at 4.05pm, the decision was taken to enter the premises when it appeared that the respondent and Mr. D were about to bring in more empty boxes. It is worth noting that at this point in time, Mr. Sarsfield was standing on the footpath of the premises and he had on his person the keys for the HGV as well as a mobile phone. Upon entering the garage, Gardaí quickly realised it was the centre of a largescale drugs distribution unit due in part to there being a large amount of controlled substances in plain sight. In particular, there was a significant number of packs of cannabis herbs, some 378 such packages, which, in weight, came to 188 kilos and had an estimated value of €3.760620m. Such was the quantity of cannabis on the premises that Gardaí spoke of people tripping over packs of the substance. The Gardaí also discovered three stun guns on a shelf in the garage during their search. On further examination, it emerged that these guns were not in good condition. In a makeshift office, were three packs of diamorphine which collectively weighed about 2.9 kilos and had an estimated value of €410,312. Other items seized were a weighing scales, a money counting machine, and two plastic bag sealing machines. The evidence of those members who were present indicated that there was an overpowering smell of cannabis herb on the premises.

5 The respondent was arrested and detained and in the course of his detention was interviewed on six occasions. For the most part, he exercised his right to silence, though he did refer to the fact that he had a gambling debt of €60,000 and was addicted to cocaine, using it three or four times a week. Gardaí confirmed that he was “a small cog but undoubtedly important cog in the bigger machine”.

The Sentence

6 In terms of the respondent's background and personal circumstances, he was thirty-nine years of age at the time his arrest. He had no relevant previous convictions with only minor recorded convictions for road traffic and public order offences. The Central Criminal Court also heard that he had been suffering from depression for some ten years and that there was a history of chronic knee and back pain. A letter from the respondent's GP suggests that his vulnerabilities, both mental and physical, had been taken advantage of at the time of the offences.

7 A number of very positive testimonials were opened to the Court below which highlighted among other things the efforts made by Mr. Sarsfield to deal with his addictions through the SMART recovery programme, his role as a coach to a youth football team, and his having been a supportive family man. Reference was also made to Mr. Sarsfield assisting others on their own path to recovering from addiction. The approach of the sentencing judge was to identify a headline sentence of twelve years, but he felt that there were factors present which would permit him to impose a sentence less than the mandatory presumptive minimum often years. The Judge then proceeded to impose the sentence of seven years imprisonment which the Director has now sought to review.

The Undue Leniency Application

8 When the present application was first listed, counsel for the moving party was asked by members of the Court whether it was the Director's position that this was a case where the mandatory presumptive minimum should not have been deviated from. After a somewhat equivocal initial response, counsel sought an opportunity to take instructions. Having done so, counsel confirmed that the Director's position was that this was not an appropriate case in which to impose a sentence less than the mandatory presumptive minimum. In those circumstances, the Court indicated that it would welcome further submissions directed to identifying the circumstances in which a court would or would not be justified in departing from the mandatory presumptive minimum. The Court further expressed the view that it would welcome being provided with any information that was available in relation to sentencing patterns in this area.

9 In response to these requests, helpful submissions have been provided on behalf of the Director and the respondent. The submissions of the Director...