DPP v Wharrie

• Jurisdiction: Ireland
• Judge: Hunt J.
• Judgment Date: 15 February 2016
• Neutral Citation: [2016] IECCA 1
• Docket Number: Record No. 218/2008
• Court: Court of Criminal Appeal
• Date: 15 February 2016

MacMenamin J.

Moriarty J.

Hunt J.

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

PERRY WHARRIE

APPELLANT

[2016] IECCA 1

Record No. 218/2008

THE COURT OF CRIMINAL APPEAL

Sentencing ? Drug offences ? Mitigating factors ? Appellant seeking to appeal against sentence ? Whether trial judge gave appellant sufficient credit for mitigating circumstances

Facts: The appellant, Mr Wharrie, was convicted of offences contrary to the provisions of s. 3, s. 15 and s. 15A of the Misuse of Drugs Act 1977 after a Circuit Court trial in Cork. The consignment of cocaine constituting the subject matter of these offences constituted the largest drug seizure in the history of the State, being variously stated to have values ranging from ?100m to ?440m. The consignment was of a very high purity and was packed in bales. The Court of Criminal Appeal dismissed the appellant?s application for leave to appeal against those convictions. Thereafter, the Court reconvened to consider the appellant?s appeal against the sentence of 30 years imprisonment imposed upon him by the trial judge in respect of the offence contrary to s. 15A of the 1977 Act. Having heard the submissions of the parties on the appeal against this sentence, the Court of Criminal Appeal concluded that the trial judge had erred in principle in imposing this sentence, and adjourned the matter in order to hear further evidence and submissions, for the purpose of enabling the Court to impose sentence upon the appellant.

Held by Hunt J that, having considered the evidence given by two co-accused as being an aggravating factor in their cases and not the appellant?s, the trial judge erred in principle by failing to afford any credit to the appellant for this significant element of potential mitigation; the trial judge considered that it was cancelled out by the appellant?s ?lamentable antecedence?, in reference to his criminal record. The Court considered that this was an error in principle in the circumstances of this case as the appellant ought to have received credit in respect of the mitigating factor that he did not attempt to tender false evidence. Hunt J held that the fact that these serious offences were committed by an individual with a significant record of previous criminal convictions was a matter which ought to be reflected in the fixing of a headline sentence appropriate to the offence as committed by the particular offender. Hunt J held that the withholding of a deduction in respect of a significant mitigating factor, by reference to the existence of previous offending, amounted to a double punishment. Hunt J held that the trial judge failed to consider whether the appellant was entitled to some minor leeway in respect of the fact that he was called upon to serve a very lengthy custodial sentence in a country with which he had no apparent connection. Having identified these errors in principle in sentencing, Hunt J proceeded to sentence the appellant afresh, in the light of the additional materials and submissions provided by invitation of the Court on this issue.

Hunt J held that, applying a modest discount in respect of those matters, the Court would quash the sentence imposed by the trial judge, and substitute a sentence consisting of twenty-two years and six months as a headline sentence, with five years deducted therefrom to reflect all applicable mitigating factors.

Appeal allowed.

th

Hunt J.

1 The factual background to this matter may be found in the earlier judgment of this Court delivered on 19th April, 2013. Arising from the factual circumstances set out therein, the appellant was convicted of offences contrary to the provisions of s. 3, s. 15 and s. 15A of the Misuse of Drugs Act 1977, as amended. This Court dismissed the appellant's application for leave to appeal against these convictions on the grounds referred to in that judgment.

2 Thereafter, this Court reconvened to consider the appellant's appeal against the sentence of 30 years imprisonment imposed upon him by the learned trial judge in respect of the offence contrary to s. 15A of the 1977 Act. As pointed out in this Court's earlier judgment, the consignment of cocaine constituting the subject matter of these offences constituted the largest drug seizure in the history of the State, being variously stated to have values ranging from ?100m to ?440m. The consignment was of a very high purity and was packed in bales.The appellant pleaded not guilty, and on arraignment was convicted of these offences after a Circuit Court trial in Cork, lasting 41 days.

3 Having heard the submissions of the parties on the appeal against this sentence, this Court concluded that the learned trial judge had erred in principle in imposing this sentence, and adjourned the matter in order to hear further evidence and submissions, for the purpose of enabling this Court to impose sentence upon the appellant.

4 The appellant was indicted in respect of these matters together with three other accused persons. One of these individuals pleaded guilty to the charges at an earlier date. He received a sentence of 10 years. The other two were tried with the appellant. They were also convicted by the jury, and received sentences of 30 years and 25 years respectively.

5 Two features are of particular relevance to the position of the appellant in this appeal. Firstly, unlike his co-accused, he did not contest the matter by giving evidence, in circumstances where the jury apparently had no difficulty in convicting all of the accused men. Secondly, it must be noted that the appellant had a lengthy and serious criminal record in the United Kingdom...