The People (at the suit of the Director of Public Prosecutions) (applicant) v Rory Lernihan (respondent)
Criminal law - Sentencing - Appeal by Director of Public Prosecutions - Whether sentence unduly lenient - Onus of proof - Jurisdiction of court - Whether trial judge erred in sentence imposed - Whether substantial departure by trial judge from the appropriate sentence - Criminal Justice Act, 1994 s. 2 - Criminal Justice Act, 1999 s.4 Misuse of Drugs Act 1977, ss. 15A & 27.
The Court of Criminal Appeal (Mrs Justice Denham, Mr Justice deValera, Mr Justice McGovern); judgment delivered on April 18th, 2007.
The Court of Criminal Appeal has jurisdiction to review a sentence pursuant to s. 2 of the Criminal Justice Act 1993. In exercising this jurisdiction the court is in the position of the sentencing court and considers the matter de novo. It is well established that the onus of proof of undue leniency rests upon the Director of Public Prosecutions.
When considering sentencing under the 1999 Act the court should first determine what the appropriate notional sentence is, bearing in mind the maximum sentence of life imprisonment, then consider the aggravating and mitigating circumstances and then apply the mitigating factors.
The Court of Criminal Appeal so held by quashing sentence and imposing sentence in lieu.
Alice Fawsitt, BL, for the applicant; Timothy O'Leary, SC, with Ronan Munro, BL, for the respondent.
Mrs Justice Denham, delivering the judgment of the court, commenced by outlining the background to the case. The Director of Public Prosecutions applied to the Court of Criminal Appeal for a review of the sentence imposed on the respondent by Cork Circuit Criminal Court on the basis that the sentence was unduly lenient in all the circumstances of the case. The sentence in issue was one of four years imprisonment on each of two counts, to run concurrently, the final two and a half years to be suspended.
The respondent had been sent forward by the District Court to the Cork Circuit Criminal Court on a signed plea of guilty on two charges. The charges were possession of a controlled drug, namely cocaine for the purpose of selling or otherwise supplying it to another and at the time the drugs were in his possession their market value exceeded €13,000 in contravention of the Misuse of Drugs legislation. The second charge was possession of cannabis resin. Mrs Justice Denham quoted the trial judge as saying:
"In the circumstances of this case there has been [ a plea] for the possession of 1 kilo of cocaine and a Section 3 plea in relation to the cannabis. The amount of the cocaine was 1 kilo, which, allegedly, the street value is €72K, perhaps not the biggest amount of drugs in the context of this court to come before the court. But what has struck me in this case over and above any other case is, if you like, this man was in some comfort working. He was not a drug addict when he knowingly got involved in this trade. I accept what the sergeant says that now that he is caught he is unlikely ever to get involved again. He did it for money. That is all the downside. The mitigating side: he has pleaded guilty, he pleaded guilty in early course, he has shown remorse, he is unlikely to get involved again. Now weighing everything one with the other, I believe there has to be a custodial sentence. I know it is going to have a very serious effect on him and bring devastation to his family, but I believe in the context of this case where somebody knowingly gets involved in the trade of drugs, that one of the consequences of that trade is you are going to lose your liberty. There is definitely sufficient, in this case, which allows me to depart from [ the] the mandatory 10 years sentence, in other words it would be unjust to impose a 10-year sentence. So given that the facts allow me to depart from a 10 years sentence, what sentence do I think appropriate? In all of the circumstances I would regard a sentence . . . First of all, in the ordinary course of events, without the mitigating factors, I would say a sentence of four years would be appropriate. There are exceptional mitigating factors in this case because of the early plea, the extent of the co-operation and the fact that he has continued to work and rehabilitate himself, I will take that into account. So what I will do is I will suspend the . . . he will serve 18 months and I will suspend the balance of the four years."
Mrs Justice Denham said that the Director of Public Prosecutions had applied to the Court of Criminal Appeal on the following grounds:-
(i) The sentencing court erred in law and in fact in being unduly lenient when having accepted the mitigating factors put forward by the respondent were exceptional and specific circumstances which would make a sentence of not less than ten years imprisonment unjust and having deemed in those circumstances that the appropriate sentence was four years, the sentencing court then relied on the same mitigating factors to suspend the balance of the sentence once the respondent had served 18 months of the four years.
(ii) The sentencing court erred in law and in fact in being unduly lenient by failing to attach sufficient weight to the gravity of the offence for which the maximum penalty is life imprisonment and the existence of a mandatory minimum sentence of ten years imprisonment.
(iii) The sentencing court erred in law and in fact in being unduly lenient when having determined that the appropriate sentence was below the statutory minimum it failed to consider whether the sentence should be increased to the minimum sentence.
(iv) The sentencing court erred in law and in fact in being unduly lenient when it determined that the early plea of guilty and the circumstances of the respondent were exceptional and specific circumstances to the respondent which would make a sentence of not less than ten years imprisonment unjust in all the circumstances.
(v) The sentencing court erred in law and in fact in being unduly lenient in determining that the respondent materially assisted in the investigation of the offence to the extent that it created exceptional and specific circumstances relating to the offence or the respondent which would make a sentence of not less than ten years imprisonment unjust in all the circumstances.
(vi) The sentencing court erred in law and in fact in being unduly lenient in the weight it attached to the early plea of the respondent, the extent of his cooperation, the necessity for rehabilitation, the absence of previous conviction and the degree of remorse when determining the appropriate sentence.
(vii) The sentencing court erred in law and in fact in being unduly lenient in failing to attach sufficient weight to the fact that the respondent was not addicted to drugs and consequently not in need of rehabilitation, was employed and admitted engaging in the offence for monetary gain.
(viii) The sentencing court erred in law and in fact in being unduly lenient in determining that the consequence for the respondent's family was a matter which it should take into consideration in considering whether or not there were exceptional circumstances that rendered a sentence of not less than ten years imprisonment unjust.
Mrs Justice Denham stated that the essential facts were that on December 13th, 2004, members of the drug squad stopped and searched the respondent pursuant to s. 23 of the 1977 Act. He was found to have a bag on his person containing a kilo of cocaine. He was arrested and detained. A warrant was obtained and his house was searched and a small amount of cannabis resin was found. The kilo of cocaine would have a market value of approximately €72,000. The cannabis was of a nominal street value and it was accepted that it was for personal use. A detective sergeant gave evidence that the respondent gave limited co-operation to the authorities. At interview he claimed he had received the cocaine a short time earlier and that he was holding it for a certain amount of money. He did not otherwise assist the investigation as to where the drugs had come from or what he intended doing with them. He claimed he was to get €500. The detective sergeant accepted that the respondent was storing the drugs. Mrs Justice Denham stated that it was clear that the motive in the case was pecuniary. The respondent pleaded guilty, gave evidence, apologised, and said he was extremely remorseful and sorry for hurting everyone in his family and his community. The respondent had no previous convictions and had taken steps to obtain counselling.
Counsel for the Director of Public Prosecutions submitted that if there was no suspension of the sentence it would be a lenient sentence but that the 2½ year suspension rendered it unduly lenient. Counsel submitted that the sentencing court had applied the mitigating factors twice and that the consequent suspension aspect of the sentence was wrong. Further, counsel submitted that the learned trial judge had not followed normal procedures in sentencing, and in considering the mandatory minimum aspect of the sentence.
Counsel, on behalf of the respondent, accepted that the four-year sentence was lenient and that the issue to be considered was whether the suspension was unduly lenient. Counsel stressed that the onus was on the Director of Public Prosecutions. Counsel referred to factors in favour of the respondent, including the absence of previous convictions, his remorse, that he was not a drug addict, and the rehabilitation he had sought. Further, counsel submitted that there was no double mitigation - and referred to the words of the sentencing judge and submitted that the new factors mentioned in relation to the suspension were that the respondent had continued to work and his seeking rehabilitation.
In reply, counsel for the Director of Public Prosecutions pointed out that the respondent had no addiction at the time of the offence, that he had kept his job, and that the rehabilitation related to events after the drug seizure and charge.
Mrs Justice Denham said that the court had reserved judgment but subsequently had the matter relisted and gave counsel further opportunity to address the issue of undue leniency in the sentence. Counsel for the Director of Public Prosecutions repeated the submission that the four-year sentence was lenient, but that the suspension of 2½ years was unduly lenient. Counsel for the respondent submitted that the onus was on the Director of Public Prosecutions and that the director had abandoned the argument that the four-year sentence was unduly lenient. Counsel submitted that as the director had abandoned the argument that the four-year sentence itself was unduly lenient, the Court of Criminal Appeal was not at large to consider that which had been abandoned by the director. In reply, counsel for the director submitted that the court's jurisdiction was not fettered by the submissions and that if the court found that a sentence was unduly lenient, then the court could determine the appropriate sentence.
Mrs Justice Denham stated that the court was satisfied that the sentence of four years imprisonment with the final 2½ years suspended was an unduly lenient sentence. The court was satisfied that there was an error in the sentencing. The gravity of the offence required to be given due consideration. The fact that the maximum sentence for the offence is life imprisonment and that the Oireachtas has established a presumptive sentence of 10 years indicates the approach established in law to the gravity of this type of offence. The sentencing court failed to address this and fell into error. Also, the sentencing court applied the mitigating factors twice, and so erred. The court would quash the sentence of four years with the final 2½ years suspended and in its place determine the appropriate sentence. Mrs Justice Denham stated that there were two issues to be addressed: (i) the jurisdiction of the court, and (ii) the appropriate sentence.
The jurisdiction of the court as to the sentence it may impose was queried by counsel for the respondent. The jurisdiction derives from s. 2 of the 1993 Act which provides:-
"2. - (1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the 'sentencing court') on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence . . .
"(3) On such an application, the court may either -
( a ) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or
( b ) refuse the application . . ."
Mrs Justice Denham stated that in the instant case the court determined that the sentence should be quashed. The court was of the view that the sentence of four years with 2½ years suspended was unduly lenient. The sentence was a single sentence: four years imprisonment with 2½ years suspended. It was that sentence which fell to be quashed pursuant to s. 2(3) of the 1993 Act. The sentence having been quashed, the Criminal Justice Act 1993 required the court to impose on the respondent, in place of the quashed sentence, such sentence as the court considered appropriate. In exercising this jurisdiction the court is in the position of the sentencing court and considers the matter de novo. The onus rested upon the Director of Public Prosecutions. In considering this matter the principles as stated in Director of Public Prosecutions v. Byrne 1 ILRM 279 were applicable. Mrs Justice Denham stated that the court applied these principles to the case. Mrs Justice Denham said that it is well established that the onus of proof rests upon the Director of Public Prosecutions to show that the sentence was unduly lenient. The director made the case that the suspension aspect of the sentence was unduly lenient. In considering the submissions the court afforded great weight to the trial judge's reasons and the constitutional principle of proportionality. In this analysis the court had considered whether there had been a substantial departure by the trial judge from the appropriate sentence.
Mrs Justice Denham said that in considering the sentence the nature of the offence is a relevant factor. Section 4 of the 1999 Act inserted section 15A into the 1977 Act which provides that;
"A person shall be guilty of an offence under this section where:-
the person has in his possession, whether lawfully or not, one or more controlled drugs for the purpose of selling or otherwise supplying the drug or drugs to another in contravention of regulations under section 5 of this Act, and
at any time while the drug or drugs are in the person's possession the market value of the controlled drug or the aggregate of the market values of the controlled drugs, as the case my be, amounts to £10,000 or more."
The sentencing of persons for this offence was addressed in s.5 of the 1999 Act, which amended s.27 of the 1977 Act, by inserting after section 27(3) the following subsections:-
"(3A) Every person guilty of an offence under section 15A shall be liable, on conviction on indictment;
to imprisonment for life or such shorter period as the court may, subject to subsections (3B) and (3C) of this section, determine, and
at the court's discretion, to a fine of such amount as the court considers appropriate.
(3B) Where a person (other than a child or young person) is convicted of an offence under section 15A, the court shall, in imposing sentence, specify as the minimum period of imprisonment to be served by that person a period of not less than 10 years imprisonment.
(3C) Subsection (3B) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances and for this purpose the court may have regard to any matter it considers appropriate, including:-
(a) whether that person pleaded guilty to the offence and, if so,
(i) the stage at which he indicated the intention to plead guilty, and
(ii) the circumstances in which the indication was given,
and
whether that person materially assisted in the investigation of the offence."
Mrs Justice Denham stated that thus, the Oireachtas had legislated for this crime and regarded it as a grave offence. The gravity of the offence may be seen by the sentencing provisions made, which set a maximum sentence of imprisonment for life.
In addition, the Oireachtas had created a presumptive sentence of ten years. Although widely referred to as a mandatory minimum sentence it is not a true mandatory sentence, such as is provided for in the crime of murder. Rather, the Oireachtas created a basic presumptive sentence of ten years, but explicitly provided that it shall not apply where there were exceptional and specific circumstances.
Further, the Oireachtas had given a non-exhaustive list of such exceptional and specific circumstances, as including: a) a plea of guilty, and (b) whether the person materially assisted in the investigation of the offence. Mrs Justice Denham said that while the Director of Public Prosecutions submitted that the four years was lenient and the suspension unduly lenient, the sentence was a single sentence and it was that sentence which was in issue. Having determined that the sentence was unduly lenient, the entire sentence was quashed. In analysing the sentence the court was satisfied that both aspects of the sentence were unduly lenient. The 2½ years suspension was unduly lenient. Also a sentence of four years imprisonment would be unduly lenient for this offence and offender. While the issue of the four-year sentence was not raised by the director, the limitation of the submissions of the director did not restrict the jurisdiction of the court which had to consider de novo all the relevant factors for the appropriate sentence once the previous sentence has been quashed. For, pursuant to s. 2(3) of the 1993 Act, the entire sentence was quashed - not just a portion of the sentence.
That being the situation, the court was required itself to consider the appropriate sentence. Mrs Justice Denham stated that the court was satisfied that the jurisdiction of the court was clear from the plain words of the section. Therefore, the court proceeded to consider de novo the appropriate sentence for the offence and for the respondent, within the jurisdiction of the sentencing court.
Mrs Justice Denham said that the correct approach to the legislative scheme was also stated by Fennelly J., giving the judgment of the court in Director of Public Prosecutions v. Galligan (Unreported, CCA July 23rd, 2003) (FL7952) as follows:-
"It has been well established in judgments of this court that it is an error to read this section as providing for a mandatory minimum sentence of ten years imprisonment, which may be mitigated by the trial judge based on identified exceptional circumstances.
The maximum sentence has also to be considered. Rather than providing simply for a maximum sentence, the section commences by making the convicted person liable for imprisonment for life or such shorter period as the court may, subject to subsections (3B) and (3C) of this section, determine. The correct approach to the interpretation of the section is expressed in the judgment of this court, delivered by Murphy J. in DPP v Chipi Renald (Unreported, November 23rd, 2001). (FL8115)
Mrs Justice Denham stated that while bearing the statute and caselaw in mind, each case requires to be decided in light of the particular offence and the particular circumstances of the accused. The court should first determine what the appropriate notional sentence is, bearing in mind the maximum sentence of life imprisonment, then consider the aggravating and mitigating circumstances, and then apply the mitigating factors. If the consequent sentence is more than 10 years then that is the sentence.
Mrs Justice Denham stated that the court considered all the circumstances of the case, which included factors such as possession of cocaine, to a street value of over €70,000, by the respondent, who was not subject to the vicissitudes of being an addict, and who was involved in the transaction purely for commercial gain. The court also noted the early plea, although the circumstances of his arrest are relevant, the assistance, though rather limited, to the Gardai, the absence of any previous convictions, and the remorse. The court bore in mind the nature of the offence, and the legislative framework.
The court was satisfied that this was a grave offence. Within the scheme of sentencing established by the Oireachtas, it is an offence at the lower end of a range between life imprisonment and 10 years imprisonment. To this notional sentence the court applied the relevant factors in relation to the respondent and to this crime. Thus, the respondent was entitled to a reduction in sentence for his plea - though in the circumstances it does not weigh so heavily, as he was, essentially, caught red-handed, and for his assistance to the Gardai, though it was limited. There was a further reduction for his lack of previous convictions and his remorse.
In all the circumstances the court considered that the appropriate sentence was one of seven years imprisonment.
Solicitors: Chief Prosecution Solicitor (Dublin) for the applicant; Patrick McCarthy & Co (Cork) for the respondent.
Kieran O'Callaghan, barrister