DPP v Sloyan

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 08 October 2019
• Neutral Citation: [2019] IECA 242
• Docket Number: Record No: CA150/2018
• Court: Court of Appeal (Ireland)
• Date: 08 October 2019

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

MOLLY SLOYAN

APPELLANT

[2019] IECA 242

Record No: CA150/2018

THE COURT OF APPEAL

Crime & sentencing – Misuse of drugs – Possession of cocaine for purposes of supply – Appeal against severity of sentence

Facts: The appellant had been convicted of possession of a large amount of cocaine for the purposes of sale/supply, and together with her co-accused sentenced to a term of imprisonment. She now sought to appeal arguing that the headline sentence reached by the sentencing judge was unfair.

Held by the Court, that the appeal would be allowed. Having regards to the amount of drugs and the scale of the operation, the sentencing judge could be said to have set the headline sentence higher than other similar cases, and the sentence would therefore be varied. People (Director of Public Prosecutions) v. Devlin and Devlin [2016] IECA 125 distinguished.

JUDGMENT of the Court delivered the 8th of October 2019 by Mr. Justice Edwards .

Introduction

1 On the 24th of April 2018, the appellant pleaded guilty to a count of unlawful possession of a controlled drug, to wit cocaine, 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 (“the Act of 1977”).

2 On the 8th of May 2018 the appellant was sentenced to imprisonment for a term of ten years to date from the 26th of November 2017, but with the final three years of that sentence suspended upon conditions.

3 The appellant's co-accused Sean McManus, Dean Gilsenan and William Gilsenan were all sentenced at the same time. Sean McManus, who had a previous conviction for a s.15A offence and who was described by the sentencing judge as being involved to “an extraordinarily high degree”, received a sentence of fifteen years imprisonment with the final three years suspended. Dean Gilsenan received a sentence of ten years with the final three years suspended (in effect the same sentence as the appellant) while William Gilsenan received a sentence of seven years with the final two years suspended

4 The appellant appealed against the severity of her sentence and the appeal was heard by us on the 23rd of July 2019. At the conclusion of the appeal hearing it was indicated on behalf of the court, in brief ex-tempore remarks, that we were prepared to allow the appeal in circumstances where we were satisfied that the appellant had established a clear error of principle, namely that the headline or pre-mitigation sentence nominated by the sentencing judge was simply too high in the circumstances of the case. We proceeded to quash the sentence imposed by the court below, and to re-sentence the appellant to five years imprisonment, once again to date from the 26th of November 2017, with the final eighteen months thereof suspended on conditions which we will elaborate upon later in this judgment. We further indicated that we would give more detailed reasons for our decisions in a written judgment to be delivered later. This judgment contains our detailed reasons.

The circumstances of the crime

5 In November 2017, as a result of confidential information and intelligence arising out of a Garda operation, Gardai were aware that Mr. Sean McManus and Mr. Dean Gilsenan were in possession of cocaine at a rented house at Seascape, Dromleigh, Bantry, County Cork. Gardai were further aware the appellant, Ms. Sloyan, had purchased a BMW on the 2nd of November 2017. It was further established that the appellant had rented the premises in Bantry. It was established that Mr. Dean Gilsenan and his father Mr. William Gilsenan were residing at the premises in Bantry and were using the BMW purchased by the Appellant.

6 On the 26th of November 2017 Gardai raided the premises. All four named persons were present. There was evidence of drug use in the kitchen. A cocaine extraction laboratory was discovered in a locked downstairs bedroom. A quantity of suspected cocaine along with containers of a solvent called isopropanol were found in this room. Several containers contained strips of fabric with a chalk-like residue. A number of facemasks and blue gloves were located near these containers, and a weighing scales and metal scraper. Fingerprint and DNA trace evidence subsequently linked all of the appellant's co-accused, but seemingly not the appellant, to items found in the room.

7 An empty brown cardboard package addressed to Chelsea Weldon, 2 Kilmahuddrick Green, Clondalkin, Dublin 22 was also found in this room. This package bore serial number EB135258447BR.

8 Gardai also discovered four additional one-litre cans of isopropanol in a garage adjoining the premises. A duvet was also located in a separate bedroom in the upstairs of the house, from which it appeared the lining had been cut out. Subsequent inquiries suggested that a flag, impregnated with cocaine, had been contained within the duvet.

9 The cocaine recovery process that was being engaged in was described in evidence at the sentencing hearing by Detective Sergeant Joanne O'Brien. It involved treating a piece of fabric, which prior to importation into the State had been impregnated with a liquid containing dissolved cocaine and allowed to dry, to re-dissolve the cocaine and extract it from the fabric. The process is one that has been engaged in by drug traffickers for many years. This was acknowledged in admissions made by the appellant's co-accused, Sean McManus, and quoted in the written submissions filed on behalf of the appellant. He characterised it as “old school”. While the process can be effective as a means of illegally importing cocaine, it is seemingly subject to the limitation that it is not suitable for the importation of very large quantities. The appellant's co-accused conceded as much, saying: “Its Mickey Mouse shit. It's too much work.” Be that as it may, the total value of the cocaine involved in this case was €51,292.

10 All four named persons were arrested and detained. Following enquiries, isopropanol was identified by the investigation team as a solvent suitable for use in the extraction of cocaine from fabric.

11 The duvet containing the flag impregnated with cocaine was ascertained to have been shipped by post from Brazil to 2 Kilmahuddrick Green, Clondalkin. Using the serial number on the package found in the house that was raided in Bantry gardai were able to obtain a copy of the tracking form relevant to that package from An Post. Subsequently, when Sean McManus's phone was seized following his arrest a photograph of the relevant tracking form was found on his phone. Also found on his phone was a WhatsApp video explaining and illustrating how to extract cocaine from cocaine impregnated fabric.

12 The sentencing court heard that Sean McManus was interviewed on six occasions. During the course of his interviews, he made certain admissions, namely that he had travelled extensively within the last six months, to Brazil, Colombia, Venezuela, St Lucia, Trinidad and Tobago, Spain and Ireland. He stated that he had travelled to Ireland from St Lucia with Dean Gilsenan, and that Molly Sloyan had picked them upin a rented Toyota Avensis. He stated they went to visit Dean's family in Clondalkin. There was subsequent evidence that 2 Kilmahuddrick Green, Clondalkin was the Gilsenan family home, and that amongst those who resided there was Dean Gilsenan's daughter Chelsea Weldon, to whom the aforementioned package had been addressed. Sean McManus further stated that he had showed Dean Gilsenan how to extract the cocaine from the flag contained within the package. He admitted to receiving 5,000 (euro, it is assumed) for his expertise in showing Dean Gilsenan how to extract the cocaine. He made admissions in relation to the rental of the house in Bantry and he admitted that a WhatsApp video and conversations found on his mobile phone were for explaining how the cocaine extraction process worked. There was evidence that this material had been sent to the appellant.

13 The sentencing court further heard evidence that the appellant made full admissions regarding her role in the scheme during five interviews conducted with her at Bantry garda station. She confirmed that she was not personally involved in the actual extraction process but rather had performed a support role. She admitted her involvement in renting the house at Seascape, Dromleigh, Bantry, stating that she had booked it personally and had paid a thousand euros cash to the landlord. She further outlined the arrangement by means of which rent was to be paid thereafter. She stated that the contract for the house was in the name of herself and Sean McManus. She confirmed that she received the video from Sean McManus in relation to how the cocaine extraction was to work. She admitted ordering the solvent isopropanol, which is used in the extraction process, and confirmed that it was ordered from Linehan's in Dublin. She admitted that, during their stay in Bantry, she had received money by Western Union transfer from Dean Gilsenan to enable her to make the logistical arrangements. She admitted that she had used her email address, i.e., mksloyan@gmail.com, to order the isopropanol, and she admitted phone data that was put to her following the seizure and examination of her own phone and the phones of her co-accused. Significantly, she admitted that the previously mentioned WhatsApp video was about the extraction process, and that other communications put to her during her interviews had been about the intended sale of the extracted cocaine to the market.

14 The sentencing court was told that Dean Gilsenan had made no admissions during interviews other than that the cocaine found during the raid on the rented house at Seascape, Dromleigh, Bantry, County Cork was his. Dean Gilsesan had been interviewed on six occasions.

15 The...