Two men guilty of possessing large quantities of heroin got very different sentences
TWO SENTENCES for drug offences were recently appealed to the Court of Criminal Appeal.
One appeal came from the defendant concerned against the severity of sentence, the other from the Director of Public Prosecutions, who was appealing the sentence on the grounds of undue leniency.
Both cases concerned young men aged 26 who had pleaded guilty to possession of large quantities of heroin, with street values of €90,000 and €145,600 respectively.
Neither had any serious previous convictions, although the former had eight minor convictions.
This man received the recommended minimum sentence for this offence of 10 years, while the other man received a six-year sentence, all of which was suspended.
In the first case, Brian Ormonde appealed against the 10-year sentence imposed by Judge Katherine Delahunt in Dublin Circuit Criminal Court in June 2008 for possession of heroin worth approximately €90,000.
He had pleaded guilty and co-operated with gardaí.
The heroin was found in his flat in Dublin in June 2007, along with a tub of glucose (commonly used as a mixing agent), a weighing scales, a list of names and €830 in cash.
The applicant immediately admitted ownership of the drug.
He said he owed approximately €14,000 for drugs, which arose due to the theft of some heroin he previously had.
He also admitted an addiction to cocaine.
During the trial, the Garda gave evidence the applicant had eight minor previous convictions.
Evidence given in mitigation included letters from his parents and from his uncle, a medical doctor, and from the chaplain’s office in Cloverhill Prison, where he had been held on remand.
These all indicated the background to his becoming involved in drugs and his progress.
His early plea of guilty and his co-operation with gardaí were brought to the attention of the court, along with the progress he had made in custody.
Despite the evidence in mitigation, the judge sentenced Brian Ormonde to the presumptive sentence of 10 years for possession of drugs above a certain value for sale or supply.
Ormonde appealed against the severity of this sentence on the grounds that his personal circumstances, along with his guilty plea, amounted to exceptional circumstances, making the 10-year sentence unjust.
In the second case, Judge Patrick Moran in Cork Circuit Criminal Court imposed a six- year sentence, all of which was suspended, on Brian Wall, on nine counts of possession of heroin worth €145,600 in September 2007. The case was heard in February 2008. He too had no previous serious convictions.
He gave evidence that he had been off work due to a sports injury, at a time when he and his partner had a young child and a mortgage, and he began selling drugs at this time.
He admitted to acting as a store man for drug dealers, but, while he co-operated with gardaí, he did not disclose for whom he was working.
He was not a drug addict.
As well as pleading guilty, he expressed remorse and spoke of the severe impact his arrest had on his partner and his parents.
In mitigation, his probation officer said he was at the lowest possible risk of reoffending and the judge said that he accepted this evidence.
The DPP appealed the sentence on the grounds that the court failed to give sufficient weight to the gravity of the offence for which the maximum sentence is life imprisonment and a presumptive minimum sentence of 10 years exists.
This, however, does not apply in cases where there are exceptional and specific circumstances.
In the first case, the Court of Criminal Appeal pointed out that the Misuse of Drugs Act, as amended, empowered the court to have regard to a guilty plea and the stage at which it occurs.
“A guilty plea . . . is an important element of any case, and this may need to be acknowledged by the sentencing judge as exceptional and specific circumstances, depending on the particular facts of the case.
“In the present case, there is no doubt that the guilty plea, as well as the co-operation from the outset of the accused, was most valuable,” the court said.
The court said that it considered there had been an error in principle on the part of the sentencing judge.
There were particular features which merited consideration, including the early admissions, the guilty plea and the lack of serious previous convictions.
It considered that the 10-year sentence should be mitigated and a seven-year sentence imposed, with the final two years suspended.
In the second case, the court considered the various mitigating circumstances, including the fact that at the time of the offence the man’s household had an income of €1,000 a month while the mortgage repayment was €800 a month, although it added the fact the motivation was of a financial nature should not be considered mitigating.
The absence of previous convictions and the man’s genuine remorse were also considered, along with the early guilty plea.
The defendant was engaged with a number of voluntary and charitable projects and was considered at the lowest possible risk of reoffending.
The court also considered the deference owed to the sentencing judge, who had heard the case.
“Sentencing judges, given their position at the frontline of criminal cases, will generally be best placed to adjudicate the appropriate sentence in light of the fundamental principle that the appropriate sentence should depend not only on the facts but also on the personal circumstances of the individual,” it said.
It said that a number of mitigating factors existed in this case, and it also took into account that the accused was the father of a young child.
While the sentence might be considered lenient, in all the circumstances it was not unduly lenient and had the value of encouraging the applicant not to re-engage in this activity.
It therefore found there was no error in principle in the sentence and dismissed the appeal of the DPP.
The full judgments are on courts.ie