DPP -v- Sophie Malric
Court of Criminal Appeal
Neutral citation (2011) IECCA 99.
Judgment was given on December 21st, 2011, by Mr Justice Joseph Finnegan, with Mr Justice Michael Hanna and Mr Justice Daniel O’Keeffe concurring.
Judgment
The minimum 10-year sentence for possession of drugs for sale or supply specified by legislation should be reduced in this case because of exceptional circumstances relating to the naivety of the applicant, her vulnerability and her level of co-operation with the Garda.
Background
The applicant was convicted of attempting to bring cocaine worth more than €210,000 into Ireland hidden in the base of a suitcase. She had travelled from Senegal carrying a case given to her by third parties and was meant to meet the friend who had introduced her to these people in Dublin.
When arrested she told gardaí she thought she was bringing in gold dust, not cocaine. She had been given €50 and was told she would get €2,500 and expenses for taking the case. She had trusted the people with whom she was dealing and considered them to be friends. She appealed against her conviction on the basis that she did not have the required mens rea, in that she was not aware she was carrying drugs, and argued this had not been adequately explained to the jury.
Her appeal against conviction was rejected by the Court of Criminal Appeal, which found the trial judge had made the nature of the burden of proof clear to the jury in his responses to defence requisitions.
She also appealed against the severity of sentence.
Her counsel accepted that she carried the bag for gain, but pointed out that she was financially in reduced circumstances, the amount of gain in comparison with the value of the drugs and the risk to the applicant was totally disproportionate and she had never before committed any crime.
She had fully accepted all the circumstances surrounding the prosecutions case apart from the mens rea element. She had also co-operated fully with the Garda, including details of the hotel she was meant to stay in, whom she was to meet and the people with whom she had been in contact. This was extremely rare in such cases, he said.
Her counsel also said her personal circumstances, including the fact she was a French national who would have very limited access to family and friends in prison, her gender and her age (32), which meant that she would be unlikely to have a family of her own if she served the full sentence.
Decision
Section 27 of the Misuse of Drugs Act 1977, as amended by the Criminal Justice Act 1999, states that the minimum 10-year sentence shall not apply if there are exceptional and specific circumstances.
In this case, the court had to have regard to the fact that the applicant co-operated fully with gardaí and gave all the information she could. Those concerned were people of European origin or had previously travelled to Europe transporting drugs, and the information would be of value to European authorities and may well lead to the apprehension of such persons in the future, Mr Justice Finnegan said.
The woman was now 32. She had been 30 at the time of the offence. She had obtained a number of qualifications. She had a number of excellent references from employers. Her family doctor had certified she was not subject to addictive behaviour.
She appeared to be somewhat naive, having said she did not wish to avail of legal representation during her Garda interview.
She was close to her family, who had attended court for the appeal, but her only contact with them was one phone call a week. As a French national, prison would be more difficult for her than for an Irish national. Although she did not plead guilty, contending she did not know she was carrying drugs, because of the other concessions made the burden on the prosecution was reduced.
The court set aside the sentence and imposed a sentence of seven years, with the last four suspended.
The full judgment is on courts.ie
Conor Devalley SC and Cathal McGreal BL, instructed by Philip Hannon solicitors, for the appellant; Damian Colgan BL, instructed by the Chief Prosecution Solicitor, for the DPP.