The People (At the Suit of the DPP) v Stephen Glynn
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 25 March 2021 |
| Neutral Citation | [2021] IECA 86 |
| Date | 25 March 2021 |
| Docket Number | Record No.: 115/18 |
| Court | Court of Appeal (Ireland) |
[2021] IECA 86
Birmingham P.
Kennedy J.
Donnelly J.
Record No.: 115/18
COURT OF APPEAL
Conviction – Possession of a controlled drug for the purpose of sale or supply – Misuse of Drugs Act 1977 s. 15A – Appellant seeking to appeal against conviction – Whether the trial judge erred in law in failing to hold that the prosecution evidence was such that the “market value” of the drugs in issue did not exceed €13,000
Facts: The appellant, Mr Glynn, was convicted of the offence of possession of a controlled drug for the purpose of sale or supply when, at the time the drug was in his possession, the market value of the controlled drug amounted to €13,000 or more, contrary to s. 15A of the Misuse of Drugs Act 1977, as amended. The appellant was sentenced on 12 March 2018 to 10 years’ imprisonment for the s. 15A offence, having had a previous conviction from 2008 for a s. 15A offence and where s. 27(3F) of the Act requires a minimum sentence of 10 years’ to be imposed where an accused has been convicted more than once for this offence. The conviction was subject to review after five years pursuant to s. 27(3J) and (3K) of the 1977 Act. A single ground of appeal was pursued by the appellant: (i) that the trial judge erred in law in failing to hold that the prosecution evidence was such that the “market value” of the drugs in issue did not exceed €13,000, and/or erred in law in allowing the issue of the value of the drugs to go to the jury for determination.
Held by the Court of Appeal that on ordinary rules of construction, the market value of the controlled drug itself refers to the retail or street value of such controlled drug, and if at any time while an accused has it in his or her possession it amounts to €13,000 or more on that valuation, then he or she has committed an offence contrary to s. 15A of the 1977 Act. The Court found that this interpretation of the intention of the Oireachtas avoids the absurdity that a dealer higher up the chain would not be guilty of a s. 15A offence in respect of a package of drugs because in the market between dealers it was only valued at €10,000, while the dealer to whom the package of drugs was sold (in effect the “end dealer”) and who was personally breaking the drug down for individual sales, would be guilty of an offence under s. 15A because the same drugs had a street value of €30,000. The Court was satisfied that the interpretation as indicated in The People (DPP) v Heaphy [2010] IECCA 86 is the appropriate interpretation in accordance with the applicable canons of construction and which reflects the intention of the Oireachtas.
The Court held that the appeal would be dismissed.
Appeal dismissed.
JUDGMENT of the Court delivered by Ms. Justice Donnelly on the 25th day of March 2021
. This appeal raises the interpretation of “market value” in assessing whether the controlled drug at issue exceeds €13,000 as provided for in s.15A(1)(b) of the Misuse of Drugs Act 1977 as amended (hereinafter, “the Misuse of Drugs Act”). The appellant was convicted of the offence of possession of a controlled drug for the purpose of sale or supply when, at the time the drug was in his possession, the market value of the controlled drug amounted to €13,000 or more, contrary to S.15A of the Misuse of Drugs Act. The only issue at the trial was whether the market value of the controlled drug had reached the threshold of €13,000 as the appellant had earlier pleaded guilty to possession of the controlled drug for the purpose of sale or supply, contrary to s.l 5 of the Misuse of Drugs Act. The two offences arose out of the same facts wherein the appellant was found with ten packages containing the controlled drug diamorphine (heroin) concealed in his car pursuant to a search carried out by the gardai on routine patrol.
. The packages in the possession of the appellant were analysed in the Forensic Science Laboratory. They had a total weight of 245.431 grams and were in powdered form containing the controlled drug of diamorphine. It was elicited in evidence that the drug had a value of just under €10,000 in the market between dealers, but if broken down into individual street deals, the value was €34,360. It was that latter value that the prosecution relied upon as the market value in accordance with the Misuse of Drugs Act.
. The appellant was sentenced on 12 March 2018 to 10 years' imprisonment for the S.15A offence, having had a previous conviction from 2008 for a S.15A offence and where s.27(3F) of the Act requires a minimum sentence of 10 years' to be imposed where an accused has been convicted more than once for this offence. The conviction is subject to review after five years pursuant to s.27(3J) and (3K) of the Act of 1977. It was accepted by the prosecution garda that the appellant was only handling the drug and did so for €200. He was at the low end of the chain and was co-operative on arrest, making full admissions.
. Evidence was given by Detective Sergeant Roberts, whose role at the Garda National Drugs and Organised Crime Bureau is to monitor drug prices and who holds the responsibility for issuing accurate guidelines relating to market value of controlled drugs throughout the country. He gave evidence as to how the market value of a controlled drug is calculated. It can be noted at this juncture that this is a crucial role in so far as a S.15A conviction is dependent on the market value of the controlled drugs, amounting to €13,000 or more.
. In his evidence, he stated that the valuation of the drugs is based on the lowest denominational street deal. He provided a useful example of this in his cross-examination, below:-
“ A. [..] So, for example, with heroin .1 of a gram is the lowest denominational deal. If we were talking about cocaine, the lowest denominational deal is a gram of cocaine which is a value of €70 for example. If we're talking about ecstasy we'd value it on the price of one MDMA tablet. So, with heroin, yes, it's .1 of a gram because that's what the traditional score bag, as it's known in the street, weighs and sells for us. That's the lowest deal. So, I accept your point, yes, it's based on the lowest denominational street deal and the more that people buy, for example, people who are involved in mid-level drug dealing that would be purchasing an ounce of heroin or people [who] would be buying a kilo of heroin, the price of that gram will come down and come down like in any market, the more you buy, the cheaper it becomes. So, I can expand on that in a sense that an ounce of heroin for example, which is a weight of 28 grams, will cost, during 2015, €1,300. If we go to a kilo of heroin which is a 1000 grams, the price will be €30,000 for that kilo. So, you can see the prices coming down from 140 per gram, down to 60 and indeed down to 30 and this continues, you know, and it's the same with every type of drug that exists; the more you buy, the cheaper it becomes.
Q. Yes, so we have these different markets and in one of the textbooks on drug offences it talks about a wholesale and a retail market even?
A. That's correct.
Q. Yet you confine your valuation to the street level, that's the highest price it could get?
A. What I try to do, is just to demonstrate or illustrate to the Court, that if somebody had the amount of — a kilo of heroin for example, that if that was broken down into street deals, that potentially this is what it could achieve. And I try to do this as fairly as possible because this is how the illicit drug market actually works.
Q. But you don't value the drugs at the market price between dealers, you value it on the basis of the street sale?
A. Yes, I do. But I'm also very happy to concede and illustrate to the Court that this wholesale end of the market does exist. So, there's a balance there to explain how the illicit market works with pricing.
Q. Because in this case, the market, the relevant market, would not have been the street level sale?
A. Well, when a suspect is found in possession of an amount of drugs, in this case approximately a quarter of a kilo, what we have to consider is where is this drug going to end up and what effective profits can be made from it. So, it is very real and accurate to actually base the price on what the lowest denominational street deal is.”
. When giving evidence about the specific drug which was in the possession of the appellant, Detective Sergeant Roberts stated:-
“ Q. Well in this case, the certificate says it was 245 grams, that's just under a quarter of a kilo?
A. That's correct.
Q. So, that's less than €10,000?
A. In the wholesale market, yes.
Q. In the wholesale market. And that would — we know that section 15A is €13,000 or more?
A. Yes, but as I stated when that's broken into street deals it would achieve €34,360.”
. Sergeant Fleming also gave evidence confirming that he too valued drugs on a street, individual level, rather than in the market in which the quantity seized was being supplied.
. At the close of the prosecution case, counsel for the appellant sought to have the case dismissed on three grounds, the one of concern for this appeal was that of the correct market value of the drug. This was contested by the DPP and the trial judge dismissed the appellant's application, relying on (The People) DPP v. Heaphy [2010] IECCA 86 in doing so. The findings in The People (DPP) v. Heaphy will be considered below. In his charge to the jury, the trial judge stated that the jury “should look in arriving at the market value at retail or street value of such drugs” and “as I say, as a matter of law, I tell you that it...
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