DPP v Witkowski & Sowa

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 16 January 2020
• Neutral Citation: [2020] IECA 10
• Date: 16 January 2020
• Court: Court of Appeal (Ireland)
• Docket Number: [44/19]

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

AND

TOMAS WITKOWSKI

RESPONDENT

AND

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

AND

MARIUSZ SOWA

RESPONDENT

[2020] IECA 10

The President

McCarthy J.

Kennedy J.

[44/19]

[45/19]

THE COURT OF APPEAL

Sentencing – Drug offences – Undue leniency – Applicant seeking review of sentences – Whether sentences were unduly lenient

Facts: The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993, seeking to review sentences on grounds of undue leniency. The sentences sought to be reviewed were sentences of 7 years imprisonment in each case, but with the final four and half years of each sentence suspended. A condition of the suspended element of the sentence was that prior to their release from custody, that both respondents, Mr Witkowski and Mr Sowa, would make arrangements to leave Ireland and not to return to Ireland for a period of 20 years. The sentences were imposed in respect of a s. 15A Misuse of Drugs Act offence to which both had pleaded guilty. The Director took issue with the headline or pre-mitigation sentence and said that thereafter, excess regard was had to the mitigating factors present which saw 60% of the headline sentence suspended; thus a headline sentence that she said was itself lenient, indeed, unduly lenient, then resulted in an actual sentence which was clearly unduly lenient.

Held by the Court that, insofar as the trial judge appeared to have identified a sentence of seven years as the headline or pre-mitigation sentence, he was in error in that regard. It was the Court’s position that this was a case where the headline or pre-mitigation sentence could never have been set at a level less than the mandatory presumptive minimum; indeed, a starting figure somewhat higher than the presumptive minimum could well have been justified. In the Court’s view, if full and generous credit was to be given for all the mitigating factors present, that would have resulted in a sentence of the order of 7 to 8 years, certainly not less than 7 years. There would have been, it seemed to the Court, some scope for a limited differentiation between the two respondents, a differentiation in favour of Mr Sowa.

The Court held that, in reflecting the disappointment factor, it would limit its intervention to quashing the sentence imposed in the Circuit Court which it was satisfied involved an error in principle, and instead, imposing a sentence of six years imprisonment. The Court regarded a sentence of six years as the minimum that could be considered. The Court considered whether the sentence of Mr Witkowski should be set at a somewhat higher figure, but concluded that given that this was a case that involved joint enterprise and common design, that the justice of the case would be met by imposing the same sentence in each case. Accordingly, the order of the Court was to quash the sentence in the Circuit Court and substitute sentences in each case of six years which would date from the same day as the sentences in the Circuit Court.

Appeal allowed.

JUDGMENT (Ex tempore) of the Court delivered on the 16th day of January 2020 by Birmingham P.

1 This is an application brought by the DPP pursuant to s. 2 of the Criminal Justice Act 1993, seeking to review sentences on grounds of undue leniency. The sentences sought to be reviewed were sentences of 7 years imprisonment in each case, but with the final four and half years of each sentence suspended. A condition of the suspended element of the sentence was that prior to their release from custody, that both men would make arrangements to leave Ireland and not to return to Ireland for a period of 20 years. The sentences were imposed in respect of a s. 15A Misuse of Drugs Act offence to which both had pleaded guilty.

2 The case concerned events that occurred on 30th March 2018. On that occasion, Gardaí in possession of a search warrant, raided a residential property in an isolated rural area of County Carlow. While the residence was somewhat isolated, it was in fact close to the main motorway network and was protected by security gates. It appears that Gardaí had the premises under observation for some time. Some days prior to the occasion of the Garda raid, Mr. Sowa had been observed leaving Dublin Airport where he had collected an individual who was thought to be a senior figure in Polish organised crime circles. That person went to the Carlow premises with Mr. Sowa, but that individual was not present at the time of the raid on 30th March 2018. The indication is that the Gardaí viewed this particular individual as a central figure in this operation.

3 When Gardaí entered the premises, they found drugs, cannabis, with a street value of €1.3m or, in weight, 65kg. The drugs were contained in 77 packets. A sum of cash in the amount of €21,440 was found on the property. It was in open view and close to the cannabis. At the property, Gardaí found large tractor-type tyres which had been used to smuggle the drugs into the country. Cannabis was then removed from the tractor tyres and was vacuum packed and the vacuum packs were then placed into holdall bags or gym-style bags. Mr. Witikowski had been seen purchasing these bags in a local store some days earlier. Thereafter,...