DPP v Wanden

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 30 July 2019
• Neutral Citation: [2019] IECA 221
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 225/2008
• Date: 30 July 2019

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

MARTIN WANDEN

APPELLANT

[2019] IECA 221

Edwards J.

Edwards J.

Baker J.

Kennedy J.

Record No. 225/2008

THE COURT OF APPEAL

Sentencing – Possession of a controlled drug for sale or supply with a value exceeding €13,000 – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Wanden, and two other persons, Mr Wharrie and Mr Daly, were each convicted by a jury at Cork Circuit Criminal Court on the 22nd July, 2008 of three offences, namely: (i) possession of a controlled drug for sale or supply, namely cocaine, with a value exceeding €13,000, contrary to s. 15A of the Misuse of Drugs Act 1977; (ii) possession of a controlled drug for sale or supply, namely cocaine, contrary to s. 15 of the 1977 Act; and (iii) possession of a controlled drug, namely cocaine, contrary to s. 3 of the 1977 Act. The appellant and his co-accused were sentenced on the 23rd July 2008, and the appellant received a sentence of 30 years imprisonment on the s. 15A count, backdated to the date on which he had gone into custody, i.e., to the 5th July 2007. The other two counts on which he had been convicted were taken into consideration. Mr Wharrie also received a sentence of 30 years imprisonment (later reduced to 17½ years by the Court of Criminal Appeal), while Mr Daly received a 25 year sentence which was upheld on appeal. A fourth person named on the indictment, Mr Hagan, had pleaded guilty in advance of the trial and was sentenced separately. The appellant appealed to the Court of Appeal against the severity of his sentence on the following grounds: (i) the trial judge erred in principle in imposing a sentence of 30 years imprisonment, which sentence was manifestly excessive in the circumstances; (ii) the disparity in sentences imposed in respect of the co-accused were so marked and unjustified that the court should interfere; (iii) the sentence imposed did not take account of the rehabilitative steps taken by the appellant since his incarceration and the court should interfere with the sentence to reflect the dramatic change in the appellant’s attitude towards drugs and this type of offending; (iv) the appellant was sentenced on 23 July 2008, his wife passed away in November 2007 and the court was entitled to consider that his sentence should be mitigated accordingly in order to allow him to be reunited with his daughter; and (v) the sentencing judge did not take into consideration, properly or at all, the fact that a lengthy custodial sentence imposed on the appellant, a foreign national, would be especially arduous as he was separated from his family.

Held by the Court that the sentence was disproportionate in the circumstances of the case. For the sentencing judge to have started so high, and to have ended up with a post mitigation sentence of 30 years was an error in principle in the Court’s assessment. The Court proceeded to re-sentence the appellant.

The Court held that an appropriate headline or pre-mitigation sentence would have been a sentence of imprisonment for 27 years, taking account of the aggravating circumstance in the appellant’s case that he has a previous conviction for “possession, transporting and smuggling of drugs”. On the mitigation side, the Court took into account the tragedy of his wife’s death while he was awaiting trial, the further bereavement involving the loss of his sister in 2007, the inevitable separation from his daughter that must follow the imposition of a lengthy sentence on him, and the fact that he is a foreigner who will be required to serve his sentence in an Irish jail. The Court held that it would discount by four years from the headline sentence of 27 years imprisonment that it had nominated, leaving a net post mitigation sentence of 23 years imprisonment.

Appeal allowed.

Judgment of the Court delivered on the 30th day of July, 2019 by Mr. Justice Edwards

Introduction.

1 In this case the appellant, and two other persons, Perry Wharrie and Joseph Daly, were each convicted by a jury at Cork Circuit Criminal Court on the 22nd of July, 2008 of three offences, namely: -

(i) possession of a controlled drug for sale or supply, namely cocaine, with a value exceeding €13,000, contrary to s.15A of the Misuse of Drugs Act 1977, as amended, (the Act of 1977);

(ii) possession of a controlled drug for sale or supply, namely cocaine, contrary to s. 15 of the Act of 1977; and

(iii) possession of a controlled drug, namely cocaine, contrary to s.3 of the Act of 1977.

2 The appellant and his said co-accused were sentenced on the 23rd of July 2008, and the appellant received a sentence of 30 years imprisonment on the s. 15A count, backdated to the date on which he had gone into custody, i.e., to the 5th of July 2007. The other two counts on which he had been convicted were taken into consideration. His co-accused Perry Wharrie also received a sentence of 30 years imprisonment (later reduced to 17½ years by the Court of Criminal Appeal), while his other co-accused Joseph Daly received a 25 year sentence which was upheld on appeal.

3 A fourth person named on the indictment, Gerard Hagan, had pleaded guilty in advance of the trial and was sentenced separately.

4 The appellant initially sought to appeal against both his conviction and sentence, but later abandoned his appeal against conviction by a Notice of Abandonment filed in this court on the 11th of January, 2019. Accordingly, the current appeal is confined to an appeal against the severity of his sentence.

The grounds of appeal.

5 The appellant's Notice of Application for Leave to Appeal lodged with the office of the former Court of Criminal Appeal was dated the 8th of August 2008. It contained sixteen grounds of appeal, but they were focused almost entirely on the appellant's conviction. There was just a single ground of appeal in respect of the sentence, and it alleged that ‘the trial judge has erred in principle in imposing a sentence of thirty years imprisonment, which sentence was manifestly excessive in the circumstances.’

6 Following the abandonment of the appeal against his conviction, and more than ten years after the Notice of Application for Leave to Appeal was lodged, the appellant filed a Notice of Motion before this court, dated the 22nd of February, 2019 seeking leave to rely on further grounds of appeal, namely that: -

(i) The disparity in sentences imposed in the present case in respect of the co-accused are so marked and unjustified that the court should interfere;

(ii) The sentence imposed does not take account of the rehabilitative steps taken by the appellant since his incarceration and the court should interfere with the sentence to reflect the dramatic change in the appellant's attitude towards drugs and this type of offending;

(iii) The appellant was sentenced on 23 July 2008 and his wife passed away in November 2007. This has had a very severe impact upon the appellant and the present court is entitled to consider that his sentence should be mitigated accordingly in order to allow him to be reunited with his daughter.

(iv) The sentencing judge did not take into consideration, properly or at all, the fact that a lengthy custodial sentence imposed on the appellant, a foreign national, would be especially arduous as he was separated from his family.

7 The motion having initially been returned to this court for hearing on the 1st of March 2019, it was adjourned to the hearing of the appeal which took place on the 28th of March 2019. On that date the court was disposed to permit the additional grounds to be argued de bene esse, taking the view that the initial ground of appeal was so broad that it arguably encompassed them in any event, and that the proposed additional grounds would assist both the parties and the court to address the appeal in a more focussed way. Accordingly, we will at this stage, and for procedural regularity, make a formal order granting the leave sought by the appellant in his Notice of Motion dated the 22nd of February 2019.

The circumstances of the crime as established in evidence.

8 The sentencing court heard that the appellant and his co-accused were operating on behalf of an organised crime group based both in the United Kingdom and in Spain. This crime group could call upon considerable international resources in terms of human resources, logistics, and finance in furtherance of their drug trafficking activities. In this specific instance a catamaran, the Lucky Day, had been purchased in Miami on 7 March 2008 for $110,000 (or approximately €90,000). It was provided with a Lithuanian crew and the objective was to transport a massive amount of cocaine from Columbia initially to Ireland for onward trans-shipment to elsewhere in Europe. The plan had involved the Lucky Day proceeding to location approximately 30 nautical miles southwest of the Irish coast at which there was a weather buoy, known as the ‘entry weather buoy’. The intention was that the catamaran would rendezvous at this point with two rigid inflatable boats (RIBS) that had earlier been launched from Glengarriff Pier on the southwest Irish coast and had proceeded out to meet it. Following the intended rendezvous the Lucky Day's cargo of cocaine was then to be transferred to the RIBS at sea, following which it would be ferried by means of the said RIBS to the Irish mainland, making landfall on the Sheep's Head.

9 The evidence was that up to nine people, including the three accused, were involved both onshore in Ireland and elsewhere with advance preparations for this rendezvous and intended landing, including sourcing, purchasing and importing the RIBS to be used in the operation, reconnoitring the intended landing spot, purchasing and/or hiring vehicles and trailers, the procurement of radios, satellite telephones, GPS equipment,...