DPP v Wharrie

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 03 July 2017
• Neutral Citation: [2017] IESC 47
• Docket Number: Supreme Court appeal number: 2016 no 000079 [2017] IESC 047 Court of Criminal Appeal record number: 2008 no 218 [2016] IECCA 1 and 3 Circuit Criminal Court bill number: 2007 CY 136,[S.C. No. 79 of 2017]
• Court: Supreme Court
• Date: 03 July 2017

[2017] IESC 47

An Chuirt Uachtarach

The Supreme Court

Charleton J.

O'Donnell Donal J

McKechnie J

Clarke J

Charleton J

O'Malley Iseult J

Supreme Court appeal number: 2016 no 000079

[2017] IESC 047

Court of Criminal Appeal record number: 2008 no 218

[2016] IECCA 1 and 3

Circuit Criminal Court bill number: 2007 CY 136

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Appellant

- and -

Perry Wharrie

Defendant/Respondent

Sentencing – Mitigation – Perjury – Appellant seeking to certify a question for appeal to the Supreme Court – Whether it a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give evidence at his trial

Facts: The defendant/respondent, Mr Wharrie, in Cork Circuit Criminal Court, faced a charge under s. 15A of the Misuse of Drugs Act 1977, which fixes a minimum 10 year sentence for the possession of controlled drugs for unlawful sale of supply exceeding €13,000 in value. Mr Wharrie pleaded not guilty. On the 22nd of July 2008, he was found guilty and sentenced to 30 years imprisonment. Mr Wharrie’s appeal to the Court of Criminal Appeal resulted in the reduction of his sentence to one of 17 years and 6 months. The Court of Criminal Appeal regarded the decision by Mr Wharrie to shun the witness box and any attempt at perjury in defence of himself as being a significant factor. After leave of the Court of Criminal Appeal to appeal, sought by the prosecutor/appellant, the DPP, was refused, the DPP then certified a question for appeal to the Supreme Court on the 31st of May 2016: Is it a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give evidence at his trial? The notice of appeal of the DPP asserted that this was not a correct principle and set out three grounds of appeal: 1) the failure by an accused to give evidence in his trial cannot be considered as a factor which should mitigate his sentence; 2) the failure by an accused to give evidence in his trial can at most be considered as the absence of an aggravating factor; 3) whether or not an accused gives evidence at his trial is not a relevant factor as regards his sentence.

Held by the Court that, having cited The People (DPP) v Shekale [2008] IECCA 28 and R v Gray [1977] VR 225, while an accused may be given credit appropriate to an early admission of guilt, a plea of guilty, or, to a lesser extent, an approach to the trial process which saves time and money, no trial judge is entitled to aggravate the appropriate sentence because the accused gave perjured evidence in his own defence or in defence of others; perjury is a separate crime and it is not a factor of aggravation of an existing offence. The Court held that, as a matter of principle, since perjury is a criminal offence, it defies logic to conclude that failing to tell deliberate lies under oath or affirmation somehow mitigates the seriousness of an offence.

The Court held that the answer to the question certified, on a without prejudice basis, by the DPP, is that it is not a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give false evidence at his trial.

Question certified answered.

Judgment of Mr Justice Peter Charleton , delivered on Monday, July 3rd 2017

1 This appeal arises out of a major drugs importation. At issue is whether a person convicted by a jury who had not given perjured evidence in defence of himself at his trial is entitled to a reduction of the sentence appropriate to his crime. Under s. 29(3) of the Courts of Justice Act 1924 as amended by s. 22 of the Criminal Justice Act 2006, the Director of Public Prosecutions is entitled, following an appeal in the Court of Criminal Appeal, to certify a question for the consideration of the Supreme Court, without prejudice to the existing outcome. Following the judgment of the Court of Criminal Appeal on the 15th day of February 2016, [2016] IECCA 1, Hunt J, with MacMenamin and Moriarty JJ concurring, leave of the Court of Criminal Appeal to appeal sought by the Director of Public Prosecutions was refused; [2016] IECCA 3. The Director of Public Prosecutions then certified this question for appeal to this Court on the 31st of May 2016:

Is it a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give evidence at his trial?

2 The notice of appeal of the Director of Public Prosecutions 15th day of June 2016 asserts that this is not a correct principle and sets out three grounds of appeal:

1. That the failure by an accused to give evidence in his trial cannot be considered as a factor which should mitigate his sentence;

2. That the failure by an accused to give evidence in his trial can at most be considered as the absence of an aggravating factor;

3. Whether or not an accused gives evidence at his trial is not a relevant factor as regards his sentence.

Background facts

3 Early on the morning of the 2nd of July 2007, Gerard Hagan, an Englishman, who was panicked and drenched to the skin by seawater, called to a private home in Dunlough Bay in County Cork and sought help. His story was that his boat had sunk. He had gotten ashore, he told the family, but another man remained in the sea. That was indeed the case. The emergency services were called. On the lifeboat being launched, they found another Englishman called Martin Wanden floating in the ocean in a force 6 gale, with a collapsed and disabled boat nearby. This was a rigid-hulled inflatable boat, sometimes called a RIB, which is a lightweight but high-performance and high-capacity boat, constructed with a solid, shaped, hull and flexible inflatable tubes at the gunwale. While designed to be stable and seaworthy in challenging conditions, the Atlantic waves had defeated it. Floating around the shipwrecked man in the water were bales of what later proved to be almost pure cocaine, a controlled drug under the Misuse of Drugs Acts 1977 and 1984. When recovered, and subsequently analysed, the weight of the cocaine was found to be 1.5 tonnes. On the headland overlooking the bay, a green Land Rover Defender jeep had been abandoned. Nearby, and apparently keenly observing the rescue, were the accused Perry Wharrie and another man, Joseph Daly. Though soaked through, and clearly the victims of the same accident at sea as the seafarer then being fished out of the water, they were not prepared to admit it. They spoke briefly to members of the Coast Guard and then walked away, making through the fields and putting distance between themselves and this bizarre scene. Two days later, they were arrested in a dishevelled state. Following hospital care, Martin Wanden was also arrested on the 5th of July.

4 The background facts were investigated by the gardaí. It emerged that this group of four men had sourced cocaine in South America and determined on a plan of importation, with Ireland being either a staging post or perhaps the final destination. They had stowed the drugs in an ocean-going catamaran, called Lucky Day, and sailed eastwards across the Atlantic. The catamaran was brought to on the open water south west of Mizen Head, where the RIB was planned to take on the contraband for freighting ashore. While approaching the Cork coast, the RIB sank. At Perry Wharrie's trial, it was disclosed that considerable funds had been invested into this criminal enterprise, with the purchase of the cocaine at wholesale value coming to perhaps €330,000. It also involved the purchase of the catamaran, three jeeps, two RIBs, fitting out the conspirators with false identities and passports, and providing them with sophisticated communications equipment, including satellite telephones, so that Lucky Day could be tracked as it made its ill-starred passage between continents. The weather, however, literally sank the enterprise.

Sentencing factors

5 The accused Perry Wharrie had a long criminal record in England. He was born in August 1959 in east London and was first convicted at Bromley Magistrates Court for theft in 1978. There followed property offences, burglary, obtaining property by deception, and the like, with two counts of possession of drugs in 1985. In April 1989, he was convicted of murder, associated with robbery and the possession of firearms. The murder count carried a mandatory sentence of life imprisonment, while the robbery with firearms resulted in a concurrent 15 year jail term. On being released on licence in 2005, Perry Wharrie broke the conditions of his licence, cut off contact with his parole officer and left England. He travelled into Ireland under a false passport using the name Andrew Woodcraft. While no one was identified as the leader of this criminal enterprise, nothing about the approach of the men involved indicated anything less than full commitment.

6 In Cork Circuit Criminal Court, Perry Wharrie faced a charge under s. 15A of the Misuse of Drugs Act 1977 as amended, which fixes a minimum 10 year sentence for the possession of controlled drugs for unlawful sale of supply exceeding €13,000 in value. Here, the estimate for the value of the drugs on the open market, at retail rates, varied between €108 million and up to around €400 million. Gerard Hagan pleaded guilty on arraignment but Perry Wharrie, Martin Wanden and Joseph Daly, as was their right under our system of justice, put the prosecution on proof by pleading not guilty. On the 28th of May 2008 they were all tried before Judge Seán O Donnabháin and a jury. This involved a 42 day trial, during which two of the accused, but not Perry Wharrie, gave evidence in their own defence. That evidence was later, at sentencing stage, described by the trial judge as...