The People (At the Suit of the DPP) v Darren King
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 27 January 2022 |
| Neutral Citation | [2022] IECA 45 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 35/2021 |
[2022] IECA 45
The President
Edwards J.
McCarthy J.
Record No: 35/2021
THE COURT OF APPEAL
Sentencing – Drug offences – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr King, appeared before the Dublin Circuit Criminal Court on the 27th October 2020 on signed pleas of guilty to (a) offences contrary to s. 15A of the Misuse of Drugs Act 1977 which related to counts 1 and 2, (b) offences contrary to s. 15 of the 1977 Act which related to counts 4, 6, 8, 10, and 12 and (c) offences contrary to s. 3 of the 1977 Act which related to counts 3, 5, 7, 9 and 11. Following the hearing of evidence a probation report was ordered by the court and the matter was adjourned to the 29th January 2021 for sentencing when the judge imposed a sentence of 7 years for each of counts 1 and 2 which were to run concurrently. Offences relating to all other counts were taken into consideration. The appellant appealed to the Court of Appeal against the severity of the sentence on the following grounds: (a) the sentencing judge erred in her interpretation of the probation report, in finding that the appellant was at “moderate” risk of re-offending; (b) the sentencing judge failed to give adequate weight to what were referred to in the appellant’s submissions as “protective factors finding in the (probation) report which...were corroborated by the testimonials presented on behalf of the Appellant”; (c) the sentencing judge erred in not considering probation supervision to be necessary for the appellant post-release; and (d) the sentence was excessively focused on deterrence and failed to achieve the objective of rehabilitation, in not incorporating a suspended element.
Held by the Court that the sentencing judge would have had some margin of discretion in regard to the exact level of discount and she was not obliged to specify what component of her overall discount was to be attributed to the signed pleas. The Court thought that the discount afforded of 5 years from the headline sentence of 12 years was generous overall, and no criticism of it could legitimately be entertained. The Court held that it was within the discretion of the sentencing judge to reward progress towards rehabilitation to date, and to incentivise continued progress towards rehabilitation, but she was not obliged to do so. The Court held that there was little or no evidence before the sentencing judge to suggest a causal link between the appellant’s substance abuse difficulties in the past and his possession and distribution of a very large quantity of drugs on the date on which he was apprehended. In the Court’s view the sentencing judge could not be criticized for legitimately exercising her discretion not to suspend an additional portion of the sentence.
The Court dismissed the appeal.
Appeal dismissed.
JUDGMENT of the Court ( ex tempore) delivered on the 27th day of January, 2022 by Mr Justice Edwards.
The appellant appeared before Judge Codd in the Dublin Circuit Criminal Court on the 27th October 2020 on signed pleas of guilty to (a) offences contrary to s.15A of the Misuse of Drugs Act 1977 which relate to Counts 1 and 2, (b) offences contrary to s.15 of the Misuse of Drugs Act 1977 which relate to Counts 4, 6, 8, 10, and 12 and (c) offences contrary to s.3 of the Misuse of Drugs Act 1977 which relate to Counts 3, 5, 7, 9 and 11.
Following the hearing of evidence a probation report was ordered by the court and the matter was adjourned to the 29th January 2021 for sentencing when Judge Codd imposed a sentence of 7 years for each of Counts 1 and 2 for offences contrary to s.15A of the Misuse of Drugs Act 1977 which were to run concurrently. Offences relating to all other counts were taken into consideration.
The appellant now appeals against the severity of the sentence.
Evidence was given in court by Detective Garda Russell from the Garda National Drugs and Organised Crime Bureau detailing the circumstances of the case the subject of this appeal.
The witness explained that following confidential information which came into the possession of An Garda Síochána, the appellant was placed under surveillance in an operation that specifically targeted his movements.
At 17.30 hours on the 23rd of April 2019 surveillance of the appellant saw him drive a white Nissan Qashquai belonging to his partner, from her address at 42 Cherry Orchard Parade to Gurteen Road Ballyfermot and then on to the appellant's home address at 38 Cole Park Road where he parked and went into his residence.
While still under surveillance at 18.10 hours he is seen leaving his residence and going to a black Ssang Yong Actyon car registered to his partner's brother and taking a large bag from it which he transferred to the rear of the white Quashquai. He then drove a short distance to Ballyfermot Road where he parked outside the Bank of Ireland premises.
Shortly after parking there a taxi pulled up adjacent to the appellant's car. Two males alighted from the taxi and went to the appellant's car where they were seen in conversation with him. One of the males took a bag from the rear of the appellant's car and brought it back to the taxi.
The two vehicles left the scene and shortly after were intercepted by the Gardaí. One of the males in the taxi was arrested at the scene and was subsequently charged and dealt with as a co-accused. The other male made his escape and avoided apprehension by the Gardaí.
The appellant's car was intercepted on the Ballyfermot Road and presenting as no difficulty to the Gardaí he was arrested for offences contrary to the Misuse of Drugs Act 1977 and detained at Ballyfermot Garda Station.
Evidence was given in court stating that the taxi driver was entirely innocent of any wrongdoing.
The bag that had been given to the two males by the appellant was later found to contain a quantity of cannabis valued at approximately €102,000.
When the appellant was arrested at Ballyfermot Road a small amount of cannabis was discovered in his pocket and he stated “ It's a sample. Met a fella with a sample to let him see what it's like.”
Following a search of the black Ssang Yong Actyon car parked outside the appellant's home address, 29 kilograms of cannabis valued at €590,000 and a quantity of cocaine valued at €15,000 were discovered.
Following the obtainment of a search warrant a search was conducted of the appellant's residence at Cole Park Road, where 42 grams of cannabis valued at €856 was discovered. Also recovered during the search was sterling to the value of £6,960 and €800 which, although found on a person known to the appellant, was admitted by the appellant as belonging to him. The appellant also admitted that £220 found in the kitchen area also belonged to him.
An application was made by the State for an order for forfeiture of the sum of money which the appellant was made aware of and consented to.
The appellant was interviewed by the Gardaí on three occasions. During the first interview which commenced at 22.10 hours and at the start of the second interview he exercised his right to silence. After consultation with his solicitor during a break period, he started to answer questions and made admissions to possessing the drugs in question for the purpose of sale or supply and in regard to their value. In relation to the questions which he didn't answer he stated his reason for not doing so was due to fear for his own safety.
The appellant signed pleas of guilty in the District Court and affirmed same on the 26th of June 2020.
Evidence was given in relation to the sentence imposed on the appellant's co-accused, a 20 year old male charged with an offence contrary to s.15A of the Misuse of Drugs Act 1977, who was given a wholly suspended sentence in respect to the €102,000 worth of drugs taken in the taxi. The co-accused's role was deemed as one of delivering the drugs and he had stated in interviews that he had been surprised at the quantity of drugs involved. The co-accused had no previous convictions.
The appellant was born on the 4th of February 1986 and was 33 years of age at the time the offences were committed. He is a father of five children aged between 13 years and 3 months of age and was expecting a further child at the time of the trial.
The appellant indicated during interviews that he had previously worked as a driver for Dublin Bus but had been medically retired in 2017 due to a serious back injury which required orthopaedic intervention.
During Garda interviews he stated that he had developed a cocaine addiction and had got into debt and that the offences committed were associated with that debt. However, no evidence was provided to verify this claim.
Evidence was provided to the court showing that the appellant had arrears on a mortgage with Dublin City Council totalling approximately €30,500.
The court read testimonials from his partner and parents as to his good character as a father and as a son and from his previous employer as to his good work history.
A Probation and Welfare Service Report directed by the sentencing court on the 27th of October 2020 indicated that the appellant was a moderate risk of reoffending and that he had engaged with the probation services.
The appellant had one previous conviction for robbery contrary to s.14 of the Criminal Justice (Theft and Fraud) Offences Act 2001, for an offence committed on the 11th of February 2007. He was sentenced by the Dublin Circuit Criminal Court to two years imprisonment which was suspended in its entirety for two years and a fine of €3,000.
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