DPP v Zinck

CourtCourt of Appeal (Ireland)
JudgeMr. Justice Birmingham
Judgment Date22 February 2016
Neutral Citation[2016] IECA 368
Date22 February 2016
Docket Number146CJA/15



[2016] IECA 368



Sentencing– Drug offence– Undue leniency– Applicant seeking a review of sentence– Whether sentence was unduly lenient

Facts: The respondent, Mr Zinck, was sentenced to nine years imprisonment, suspended in its entirety, at Kilkenny Circuit Criminal Court on the 20th May, 2015, for an offence contrary to s. 15A of the Misuse of Drugs Act 1977. The applicant, the DPP, appealed to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993, seeking a review of the sentence on grounds of undue leniency. Both before the sentencing court and before the Court of Appeal, it was accepted on behalf of the applicant that there were factors present that justified a departure from the presumptive minimum sentence of ten years. The issue taken was with the fact that the sentence was suspended in its entirety.

Held by Birmingham J that in deciding to suspend the sentence in its entirety, the judge fell into error. Birmingham J noted that this was a very serious criminal enterprise, the respondent had chosen to become involved and had done so for financial reward. Birmingham J held that the significant factors present in favour of the respondent did not provide a basis for a non-custodial disposal. To that extent, Birmingham J held that an error in principle had been established, and that the Court must accede to the application on behalf of the DPP.

Birmingham J held that the material before the Court, including a report from a Dr Collins and a letter from a Mr Ryan, indicated that the extent of the respondent’s progress and transformation could be described as wholly exceptional; it raised the question of whether it would be wise to undermine that progress by incarcerating Mr Zinck. However, having regard to the gravity of the original offence, the Court was not prepared to confirm a non-custodial disposition. The Court proposed to put the matter back for a period of one year in the hope and expectation that the progress achieved could be maintained.

Appeal allowed.

JUDGMENT of the Court delivered on the 22nd day of February 2016, by Mr. Justice Birmingham

This is an application brought by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, seeking a review of a sentence on grounds of undue leniency. The sentence sought be reviewed is one of nine years imprisonment, suspended in its entirety, imposed on Mr. Zinck at Kilkenny Circuit Criminal Court on the 20th May, 2015, for an offence contrary to s. 15A of the Misuse of Drugs Act 1977, as amended.

The background facts

At the outset it should be said that this case is linked with the case of Rory Kilkenny, which has also seen the DPP seek to review a sentence on grounds of undue leniency. The facts are that on foot of a search warrant the gardaí searched two industrial units at Piltown, Co. Kilkenny. Inside, they found 2,504 cannabis plants and 43.54kgs of cannabis herb. The court was told that the value of the drugs was €2,874,174. It is accepted that figure is a notional one, in the sense that it is calculated on the basis of what the crop would be worth when all plants came to maturity and did not represent an actual value on the day of the search. The units had been converted to facilitate the large scale cultivation of cannabis plants and the production, from initial growth to vacuum packing, of the finished product. The Court has been shown photographs and is in no doubt about the scale and indeed the sophistication of the operation. The sentencing court was told that the garda belief was that this was the biggest cannabis growing facility ever located in the country. Three Asian ‘gardeners’ were arrested at the scene and were brought before the courts. Sentences of seven years imprisonment, but with the final six years suspended on condition that they each immediately leave the country were imposed. At the time they came before the court and were directed to leave the country, they had been in custody for something over a year.


On the 11th November, 2013, Mr. Zinck was arrested. He cooperated with the gardaí and during interviews admitted his involvement in the operation, explaining that he was not to share in the profits of the enterprise but was to receive a fee of €5,000 for his involvement. In relation to his role, he told the gardaí ‘I wasn't involved in the setting up of it or the start or the land or any of the … I wasn't in at the starting. I was involved in delivering items to Chinese people who were working in the cannabis grow house in Piltown. I was just delivering mostly: food, phone credit, a few small electrical things, a vacuum sealer down there. Basically there was a van full of stuff for me to bring down and bring in. I owed money to people for drugs. I had a bad cocaine habit.’ This account was accepted as an accurate one. The garda evidence at sentencing was that Mr. Zinck was immediately above the gardeners and that his role was not as elevated as that of another individual, Rory Kilkenny who is also currently the respondent to an application to review a sentence on grounds of undue leniency.


Of note is that on the 15th March, 2013, Mr. Zinck was caught attempting to import €3,000 worth of cannabis which was in his stomach. This was dealt with at District Court level and resulted in a sentence of six months imprisonment suspended for a period of two years subject to certain conditions.

The background and personal circumstances of Mr. Zinck

So far as Mr. Zinck's personal circumstances are concerned, he was 31 years of age at the time of the sentence hearing, and he is a single man, though in a relationship. The court was told that he had no relevant previous convictions. Three minor convictions in all were recorded, two road traffic matters in 2006 and a minor assault in 2002. It was accepted that at one time he had a bad cocaine habit. It appears that he had started using drugs aged sixteen years old. The court heard from Dr. William Collins of Wharton House treatment centre in Waterford. Wharton House was a relatively new centre, but Dr. Collins had previously been a director of Aiserei for a number of years and, prior to that again, had been Director of Rehabilitation and Treatment Services for the Cork/Kerry area with the HSE, so he was clearly a person with very considerable experience in this area. The court was told that there had been a very positive engagement by Mr. Zinck with the Wharton House team, such that they were very optimistic about his future. Having been out of the family home for a period, he was now back home with his mother and brother, which was a measure of the progress being made. A psychologist from Wharton House who had been working with Mr. Zinck, a Mr. Whelan, also came to court to offer support.


The sentencing court was also told about Mr. Zinck's involvement with a plumbing business in New Ross. The principal of that business, Mr. Ryan, came to court to lend his support. It was explained that in the past Mr. Zinck had been taken on as an apprentice and had completed two thirds or more of his apprenticeship, but then drifted away from this as he started to associate with undesirable elements and because of his involvement in drugs.


However, the court was told that Mr. Ryan remained supportive of Mr. Zinck, to the extent of taking him back on and providing him with an opportunity to complete his qualifications. This was a significant factor in the court deciding not to finalise sentencing on the 19th November, 2014, when evidence was first heard. The judge was urged on that occasion to give him an opportunity to complete his apprenticeship, to defer the inevitable, as it was put, to allow this to happen. The court acceded to this application, and the matter was put back to the 20th May, 2015. On that occasion, the court heard from Dr. Collins once more. Dr. Collins was of the view that Mr. Zinck had progressed to an extent where he did not need to go back into a residential programme, notwithstanding that a probation report which was very positive overall had suggested that that was the optimum treatment plan.


At the suggestion of the sentencing judge, Mr. Zinck came forward to be sworn and to address the court. The judge questioned him as to his intentions and it is clear from the transcript that she was impressed by what he had to say. On this occasion, the court was also told that he and his girlfriend were expecting their first child at the end of July, 2015.

The judge's sentencing remarks

The judge referred to the scale and sophistication of the operation, describing the amount of drugs involved as massive. She observed that if that amount of drugs had got out on the streets of Ireland, it would have ruined families, would have ruined young people and would have ruined communities. She pointed out that the accused was not at the lowest level; he was at a level up from that, and she described him as being one below the top man. She referred to the fact that, when arrested, he fully cooperated and made full admissions. She also referred to the fact that he had turned his back on a loving and supportive...

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1 cases
  • DPP v Samuilis
    • Ireland
    • Court of Appeal (Ireland)
    • 11 October 2018
    ...(Director of Public Prosecutions) v Choung Vu, Kham Tu and Cong Le [2016] IECA 36; The People (Director of Public Prosecutions) v Zinck [2016] IECA 368; The People (Director of Public Prosecutions) v Kilkenny [2016] IECA 348 ; The People (Director of Public Prosecutions) v Peng Fei He [......

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