DPP -v- Derek Long: Court of Criminal Appeal Judgment delivered on October 10th, 2008, by Mr Justice Nicholas Kearns, Mr Justice Declan Budd and Mr Justice Frank Clarke concurring.
Judgment
An appeal by the Director of Public Prosecutions (DPP) against the leniency of a two-year sentence imposed on a man who pleaded guilty to possession of €111,370 worth of drugs was upheld by the court, which stated that the sentencing judge erred in stating that he did not regard the value of the drugs as a "material factor" when imposing sentence.
Background
The respondent, Derek Long (23), is the youngest of a family of three children, living with his parents. He left school at 16 and held down a series of jobs. His mother had a severe history of depression, with a number of attempted suicides. He too suffered episodes of depression.
In 2006 he was unable to find work, began drinking heavily and using cocaine and ran up a series of debts. On September 10th, 2006, gardaí found 1,591g of cocaine, with an uncontested street value of €111,370, at his family home in his absence.
He was brought to the local Garda station by his father, where he claimed he was holding the drugs for another person to whom he owed €500. He also admitted to using cocaine at weekends, though he said he was not addicted to drugs. When the case came to trial he pleaded guilty.
At the sentencing hearing, a psychological report was made available to the court saying he was an immature and vulnerable person with low self-esteem who would be prone to abusing alcohol and drugs for these reasons.
There was evidence that he had weaned himself off drugs, that he was a helpful and co-operative worker and that he had no drug-related previous convictions.
His counsel, Michael O'Higgins SC, compared the facts of the case with those in The People (Director of Public Prosecutions) -v- Spratt (2007), where a two-year sentence was substituted for a five-year suspended sentence and where the value of the drugs was €35,000.
The sentencing judge said in relation to this: "That is not a material factor."
The sentencing judge said that while the minimum sentence in the Drugs Act for possession of such a quantity of drugs was 10 years, he could go below this in special circumstances.
Such special circumstances existed here, in the guilty plea of the accused, his assistance in the investigation, his relative youth, and the psychological evidence that he was immature and vulnerable. He therefore imposed the same sentence as in the Spratt case of two years' imprisonment.
The DPP appealed on the grounds that the sentencing judge did not take into account the gravity of the offence in light of the value of the drugs, and that he gave too much weight to the circumstances of the accused.
Decision
Mr Justice Kearns said the court had no hesitation in concluding that the quantity and value of drugs seized were critical factors to be taken into account in evaluating the overall seriousness of an offence. This was implicit in the Act itself. "The court thus rejects as mistaken the views of the Circuit Court judge in this case which were unambiguously to the effect that the value of a particular haul or the difference in value of a particular haul between €35,000 and €111,370 was 'not a material factor' when it came to sentencing."
That was not to say that the value of a haul was determinative of the sentence to be imposed. Each case would necessarily turn on its own particular facts. The type of drugs would also a consideration to which the court may have regard, but the critical factor was their value, he said.
In the Spratt case, the respondent was 21 and had learning difficulties. He was a gambling addict and was in fear of the drug supplier. The critical difference with this case was the value of the drugs seized.
Mr Justice Kearns also said that the "terseness of the judgment delivered in the instant case gives rise to a measure of concern", adding that it was particularly important in such cases that the judge should deliver a reasoned judgment.
He allowed the appeal. There will be a further hearing for submissions before a new sentence is substituted.
The full judgment is on www.courts.ie
Elva Duffy BL, instructed by the chief prosecution solicitor, for the appellant; Michael O'Higgins SC and Seán Gillane BL, instructed by Sheehan and Partners, for the respondent.