D.P.P. -v- Gerard Quigley, [2008] IECCA 135 (2008)

Docket Number:219/07
Party Name:D.P.P., Gerard Quigley
Judge:Macken J.
 
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219/07Macken, J. McKechnie, J.Irvine, J. THE COURT OF CRIMINAL APPEALBetween/THE PEOPLE AT THE SUIT OF THEDIRECTOR OF PUBLIC PROSECUTIONS-and-GERARD QUIGLEYApplicantJudgment of the Court delivered on the 11th day of December 2008 by Macken, J.This is an appeal against severity of sentence on the part of the applicant who, on the 23rd October 2007, was sentenced to three years imprisonment for an offence under the Misuse of Drugs Act 1977 (as amended) ("the Act of 1977"). The applicant pleaded guilty to one of two counts, to which the court will return. The issues which arise for consideration however are quite different to those which normally arise on this type of application. Whereas counsel on behalf of the applicant challenges the sentence, the real issue for consideration is the more complex question of the correct interpretation and application of certain penalty sections of the legislative scheme covering drugs offences.BackgroundA brief background of the events is sufficient for this judgment because of the issues which arise for consideration. Gardaí in County Monaghan mounted a surveillance operation in a field outside the town of Carrickmacross, as a result of which cannabis resin, amounting to approximately 978 grammes, was found. In the course of the surveillance, according to the evidence tendered before the learned sentencing judge, the applicant and another man called Gogarty were seen by gardaí (who had secreted themselves in the field), when Cathal Gogarty, was searching inside the field while the other, the applicant, searched along the grass verge just outside the field. Three other persons remained in two motor cars which, after some time, drove away with the applicant and Cathal Gogarty. Again according to the evidence, the gardaí thereupon, on searching close to the gate entrance to the field, found drugs which were stuck into the ground wrapped in the manner described in the course of the hearing but which had not been found either by Cathal Gogarty who appeared to carry out a more extensive search, or by the applicant. The applicant was charged with two "attempting" offences - and pleaded guilty to one of these. For the purposes of understanding the legal arguments made on behalf of both parties to this application it is necessary to set out both charges which were on counts 9 and 10 on the indictment. The charges were as follows:COUNT NUMBER 9Statement of OffenceAttempting to possess a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of s.21(1) of the Misuse of Drugs Act 1977 as amended by s.6(5) of the Misuse of Drugs Act 1984.Particulars of Offence"You, Gerard Quigley, did on the 31st day of January 2006 in the County of Monaghan attempt to possess a controlled drug, towit cannabis resin, for the purpose of unlawfully selling or otherwise supplying it to another contrary to s.15(1) of the Misuse of Drugs Act 1977 and Article 4(1)(b) of the Misuse of Drugs Regulations, 1988, punishable by s.27 of the Misuse of Drugs Act 1977 as amended by section 6 of the Misuse of Drugs Act 1984."COUNT NUMBER 10Statement of OffenceAttempting to possess a controlled drug, to wit Cannabis Resin, contrary to s.21(1) of the Misuse of Drugs Act 1977 as amended by s.6(5) of the Misuse of Drugs Act 1984.Particulars of Offence"You Gerard Quigley did on the 31st day of January 2006 in the County of Monaghan attempt to possess a controlled drug towit Cannabis Resin contrary to s.3 of the Misuse of Drugs act 1977 as amended by s.2 of the Misuse of Drugs Act 1984 punishable by s.27 of the Misuse of Drugs Act 1977 as amended by s.6 of the Misuse of Drugs Act 1984." The four co-defendants, including Cathal Gogarty, were also charged with identical counts. Three of the four co-defendants pleaded guilty, as did the applicant, to count number 10, or an equivalent count. Cathal Gogarty pleaded guilty to the equivalent of Count 9 and was sentenced to three years imprisonment. The applicant was also sentenced to three years imprisonment, the three co-defendants to one year each. On a reading of the transcript it is clear that the provisions of the Misuse of Drugs Act 1977 as amended, including s.21, are those with which the sentencing court was concerned. The sentencing judge, having regard to the evidence advanced, considered that the applicant had been more involved in the offences than three of his co-defendants and more akin in terms of involvement to Cathal Gogarty. The transcript discloses this in clear terms. This AppealFrom the sentence imposed the applicant appeals against its "severity" by his Notice of Application for Leave dated the 2nd November 2007. However, the submissions on behalf of the applicant set out several grounds of appeal, and relate only indirectly to the severity of sentence. As mentioned at the commencement of this judgment, the real issue...

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