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Judgment
Title: | Director of Public Prosecutions -v- Scanlon |
Neutral Citation: | [2016] IECA 189 |
Court of Appeal Record Number: | 124/14 |
Circuit Court Record Number: | LK 7/14 |
Date of Delivery: | 17/06/2016 |
Court: | Court of Appeal |
Composition of Court: | Sheehan J., Mahon J., Edwards J. |
Judgment by: | Sheehan J. |
Status: | Approved |
Result: | Allow and vary |
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THE COURT OF APPEAL
Sheehan J.
Mahon J.
Edwards J.
124/14
The People at the Suit of the Director of Public Prosecutions
Respondent Appellant
JUDGMENT of the Court delivered on the 17th day of June 2016 by
Mr. Justice Sheehan
1. This is an appeal against severity of sentence.
2. On the 20th May, 2014, following an eight day trial at Limerick Circuit Court, the appellant was convicted of two offences contrary to s. 15A and 15B of the Misuse of Drugs Act 1977 as amended and, following a brief sentencing hearing immediately thereafter, was sentenced to fifteen year imprisonment in respect of each of these offences.
3. The background facts have already been set out in a judgment delivered by this Court on the 13th October 2015 in relation to the appeal against conviction and do not need to be repeated here, save to note that the value of the cannabis involved in this case was €79,076.
4. The appellant contends that the sentencing judge was wrong in holding that he was obliged to impose a sentence of not less than ten years imprisonment. He also contends that the sentencing judge erred in his approach to sentence by failing to locate this offence on the scale of available penalties, and further that he erred by imposing a sentence that was excessive. Finally, the appellant submits that whatever sentence is deemed to be appropriate by this Court, that sentence ought to be reviewed when 50% of the said sentence has been served.
5. In order to consider these grounds of appeal, it is necessary first of all to set out the agreed chronology of relevant events, the relevant statutory provisions and the sentencing remarks of the trial judge.
Chronology
26th May, 1999: Part II of the Criminal Justice Act 1999 was commenced, which provided for a new offence of possession of controlled drugs with intent to sell or supply with a value of £10,000 contrary to s. 15A of the Misuse of Drugs Act 1977.
25th June, 1999: The appellant was found in possession of 130kg of cannabis resin.
12th December, 2000: The appellant was sentenced to seven years in Limerick Circuit Court for an offence contrary to s. 15A of the Misuse of Drugs Act 1977 arising from the June, 1999 offence.
12th March, 2006: The appellant’s approximate release date in relation to the June, 1999 offence with full 25% remission.
18th May, 2007: Section 27(3F) of the Misuse of Drugs Act 1977 was commenced which provided for no discretion in imposing a sentence of ten years where there is a previous conviction for a s. 15A offence.
8th August, 2013: The appellant committed an offences contrary to ss. 3, 15, 15A and 15B of the Misuse of Drugs Act 1977 (as amended) in relation to the possession of 3.95kg of cannabis with a value of €79,076. The appellant has been in custody since this date.
28th May, 2014: The appellant was convicted following an eight day trial before the learned trial judge and a jury in Limerick Circuit Criminal Court. He was sentenced on the same day as the verdict to 15 years imprisonment on the ss. 15A and 15B charges. No penalty was imposed on the related ss. 3 and 15 charges.
30th October, 2015: This Court (Sheehan, Mahon and Edwards JJ.) refused the applicant’s appeal against conviction.
4th November, 2024: The appellant’s approximate release date should he achieve full 25% remission. The appellant will then be 64 years old.
Statutory provisions
6. Section 27 of the Misuse of Drugs Act 1977, as amended by s. 5 of the Criminal Justice Act 1999, s. 84 of the Criminal Justice Act 2006 and s. 33 of the Criminal Justice Act 2007, provides for sentencing of s. 15A and s. 15B offenders as follows:-
“(3A) Every person guilty of an offence under section 15A or 15B of this Act shall be liable, on conviction on indictment -
(a) to imprisonment for life or such shorter term as the court may determine, subject to subsections (3C) and (3D) of this section or, where subsection (3F) of this section applies, to that subsection, and
(b) at the court’s discretion, to a fine of such amount as the court considers appropriate.
(3B) The court, in imposing sentence on a person for an offence under section 15A or 15B of this Act, may, in particular, have regard to whether the person has a previous conviction for a drug trafficking offence.
(3C) Where a person (other than a person under the age of 18 years) is convicted of an offence under section 15A or 15B of this Act, the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person.
(3D) (a) The purpose of this subsection is to provide that in view of the harm caused to society by drug trafficking, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under section 15A or 15B of this Act, shall specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of the offence, it would be unjust in all the circumstances to do so.
(b) Subsection (3C) 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 that purpose the court may, subject to this subsection, have regard to any matters it considers appropriate, including -
(c) The court, in considering for the purposes of paragraph (b) of this subsection whether a sentence of not less than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to -
(3E) Subsections (3C) and (3D) of this section apply and have effect only in relation to a person convicted of a first offence under section 15A or 15B of this Act (other than a person who falls under paragraph (b) of subsection (3F) of this section), and accordingly references in those first-mentioned subsections to an offence under section 15A or 15B of this Act are to be construed as references to a first such offence.
(3F) Where a person (other than a person under the age of 18 years) -
(a) is convicted of a second or subsequent offence under section 15A or 15B of this Act, or
(b) is convicted of a first offence under one of those sections and has been convicted under the other of those sections,
the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person.
(3G) The power conferred by section 23 of the Criminal Justice Act 1951 to commute or remit a punishment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised before the expiry of the minimum term specified by the court under subsection (3C) or (3F), as may be appropriate, of this section less any reduction of that term under subsection (3H) of this section.
(3H) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence imposed under subsection (3A) of this section and the minimum term specified by the court under subsection (3C) of this section shall be reduced by the amount of any remission so earned by the person.
(3I) Any powers conferred by rules made under section 2 of the Criminal Justice Act 1960 to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised during the term for which the commutation or remission of his or her punishment is prohibited by subsection (3G) of this section unless for a grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by such reason.
(3J) In imposing a sentence on a person convicted of an offence under section 15A or 15B of this Act, a court -
(a) may inquire whether at the time of the commission of the offence the person was addicted to one or more controlled drugs, and
(b) if satisfied that the person was so addicted at that time and that the addiction was a substantial factor leading to the commission of the offence, may list the sentence for review after the expiry of not less than one-half of the term specified by the court under subsection (3C) or (3F), as may be appropriate, of this section.
(3K) On reviewing a sentence listed under subsection (3J)(b) of this section, the court -
(a) may suspend the remainder of the sentence on any conditions it considers fit, and
(b) in deciding whether to exercise its powers under this subsection, may have regard to any matters it considers appropriate.
(3L) Paragraph (a) of section 13(2) of the Criminal Procedure Act 1967 shall not apply in relation to an offence under section 15A or 15B of this Act, but each of those offences shall be deemed for the purposes of paragraph (b) of section 13(2) of that Act to be an offence to which section 13 of that Act applies.
(3M) The reference in subsection (3I) of this section to section 2 of the Criminal Justice Act 1960 shall be construed to include that section as applied by section 4 of the Prisons Act 1970.
(3N) In subsections (3B) and (3D) of this section ‘drug trafficking offence’ has the meaning it has in section 3(1) of the Criminal Justice Act 1994 and in subsection (3D) of this section ‘drug trafficking’ has the meaning it has in the said section 3(1).”
The ruling of the learned trial judge
7. In passing sentence, the learned trial judge remarked as follows:-
“Well, the jury has convicted Mr Scanlon after I think seven or eight days of trial to a -- on all four counts, but particularly on counts 1 and 2; count 1 being the possession of a controlled or illegal drug, cannabis, for the purpose of selling or supplying it to another while the value of the drugs was €13,000 or more; and count 2 is the importation of the same illegal drugs when the value is €13,000 or more. The maximum penalty for this offence is life imprisonment but there is a mandatory minimum of 10 years. Now, in these offences, a judge can vary the mandatory minimum of 10 years if there are particular circumstances which would make it unjust to impose that minimum sentence of 10 years, either circumstances relating to the offence itself, or circumstances relating to the accused person but the statutes go on specifically to say that in the case of a second offence, the judge has no discretion to vary or to waive from that mandatory minimum so there is a mandatory minimum sentence here of 10 years and I've no discretion in the matter to go below that.
Now, in considering this matter, I have to have regard to the mitigating factors in a case, of the cases, which would influence a judge towards leniency and also take into account the aggravating factors in the case which would influence a judge towards adopting a more severe attitude; try and balance the two, the mitigating as against the aggravating factors, after which a proper decision can be reached. Now, the mitigating factors here are that, in particular I suppose, that Mr Scanlon, as has been put by his counsel, is a colourful personality and he has, notwithstanding his previous conviction for the similar offence and other matters, has not accumulated any great wealth, or any wealth at all, a fact conceded by the prosecution and he is a person, I accept, who cannot keep a hold of any money or property because of his unfortunate addiction problems of gambling, addiction to alcohol and drugs. Now, I take those matters into account. But by way of aggravation here we have a position that he has a previous conviction for the same offence, where the drugs were considerably greater in the value in that case was drugs to the value of £1.3 million. In that case, the modus operandi, method of commission of the offence, was very similar to that which pertained in this case. In this case, he organised the delivery of almost four kilograms of cannabis to a value, according to the evidence, of €79,000 to be delivered to the house of another person under the -- and induced that other person to accept delivery under the guise that they were bits and pieces, bits and bobs, in connection with the establishment and setting-up of a restaurant and the evidence against him in this case, in the present case, was coercive in as regards that the evidence of the person who was being asked to accept the delivery, and of his wife, who identified Mr Scanlon as the person who had approached them, there was strong supporting, circumstantial evidence in the presence of Mr Scanlon nearby at relevant times; the use of mobile phones; phone traffic between and the content of them between the landline of the other parties and Mr Scanlon. And we had multiple lies told by Mr Scanlon which the prosecution contended were corroborative of the evidence of Mr and Mrs Quinn which were established by other evidence in the case that they had to be deliberate falsehoods.
Now, Mr Scanlon contested this case, fought it, and was nonetheless convicted by a jury. That's not an aggravating factor but what is a point is that he can't avail of a mitigating factor of having pleaded guilty and of being of material assistance to the gardaí and/or the prosecution, which are matters factored into consideration when the judge is being asked to deviate from the mandatory minimum and that is relevant to consider, although of course because it is a matter to be taken into account, although I'm not at large to deviate from that mandatory minimum.
Now, a 10-year prison sentence as a mandatory minimum is a very severe sentence and this has been prescribed by statute, by the Oireachtas, as a message to everybody but in particular to the Bench, to the judiciary, that these offences of drugs are to be treated most severely and that the judiciary and everybody else is to acknowledge the serious harm that's done to society by drug dealing; the peddling of drugs. Taking that into account, taking the very serious aggravating factor that this is a second offence and taking into account all the circumstances of the facts in this case, I'm going to impose a sentence of 15 years on counts 1 and 2 to run -- he's entitled to have them backdated to the day he went into custody, on the assumption he wasn't in custody for anything else, Mr Collins.”
Ground No. 1
8. The appellant submits that applying s. 27(3F) to his case would be to in effect retrospectively penalise as the 2007 amendment was not in effect at the time of the first offence. The appellant goes on to submit that it is not clear from a reading of the 2007 amendment if the intention was to apply this to s. 15A offences committed prior to its commencement. Counsel further submits that, as the intention is unclear, there is a presumption of prospective effect and, in support of this submission, relies on Doyle v. An Taoiseach [1986] ILRM 693. Therefore, the submissions conclude that the sentencing judge was at large as to sentence.
9. Counsel for the respondent disagrees with the appellant and submits, inter alia, that were the Court to hold with the appellant, it would be adding a specific qualification which the Oireachtas had not seen fit to provide.
10. We have considered s. 27(3F) in light of the submissions and hold that there is no lack of clarity about the section. It is a clear warning to those with convictions for specific drug offences that if they similarly re-offend, they will face a minimum of ten years imprisonment without qualification. We agree with the respondent’s submission that were we to otherwise hold, we would effectively be amending the said legislation. Accordingly, we hold that the sentencing judge was correct in interpreting the section as obliging him to impose a sentence of not less than ten years imprisonment, and thus this ground of appeal fails.
Ground No. 2
11. In the course of his sentencing remarks, the learned trial judge failed to locate where on the scale of available penalties he located this particular crime. Secondly, it is not simply a question of balancing the mitigating and aggravating factors. In this regard, it is relevant to note an earlier ex tempore judgment of this Court delivered by Edwards J. on the 4th December, 2015, in The People (Director of Public Prosecutions) v. Davin Flynn, wherein he stated the following:-
12. In this case the sentencing judge did not identify a headline sentence, and we are unable to ascertain from his remarks what reduction in sentence he actually allowed for the mitigation that he referred to. Accordingly, we hold that this failure constitutes an error in principle in the trial judge’s approach to sentence.
Ground No. 3
13. In the course of his sentencing remarks, the trial judge recognised that a mandatory minimum ten year sentence was a very severe sentence.
14. While we of course acknowledge the harm done to society by drug dealing, we are obliged to differentiate between cases and, in so doing, to have regard to the value of the drugs involved, the nature of those drugs and the personal circumstances of the offender.
15. In this case the court was told that the appellant was 54 years old at the time of sentence and that he was addicted to drugs, alcohol and gambling. He was described as a man of no means whose principal previous conviction involved an offence under s. 15A of the Misuse of Drugs Act 1977, involving cannabis valued at €1.3 million, for which he received a seven year sentence in the year 2000. The court was also told that, in the year prior to this sentence, the appellant had been convicted of possession of cocaine, possession of cannabis, drunken driving as well as a series of convictions in respect of forgery offences and a larceny offence.
16. On the credit side, the court was also told that, while in prison, the appellant had taken up marathon running and had raised €44,000 for charity. The prosecuting garda accepted that he was a colourful character and a person of no means. He also accepted that the appellant was addicted to drugs, alcohol and gambling. These matters were not properly factored into the sentence, and this resulted in a sentence that was excessive.
17. In view of our findings that the sentencing judge erred in his approach to sentence and imposed a sentence that was excessive, we were obliged to proceed to a fresh sentence hearing and duly did so.
Conclusion
18. We agree with the learned Circuit Court judge that this was undoubtedly a serious offence meriting a substantial sentence, but in our view the appropriate ultimate sentence ought to have been one of twelve years imprisonment. In accordance with normal practice, we received documents updating us on the appellant’s progress since his imprisonment for these offences, and we received a number of important testimonials as well as certificates and other documentation confirming the appellant’s progress in prison, in particular his engagement there with rehabilitative programmes. This additional mitigatory material allows us to reduce the sentence further, and we therefore impose a sentence of eleven years imprisonment in lieu of the original sentence of fifteen years imprisonment.
19. Finally, we have to consider whether or not the appellant is entitled to have his sentence reviewed when he has served 50% of that sentence, in accordance with s. 27(3J) of the Act of 1977 as set out above. We have been furnished with two documents by the appellant in support of his application for review. The first confirms that he spent a month some years ago in a residential addiction treatment centre in Clare, and the second that he has been attending Merchant’s Quay Ireland a drug treatment facility for those addicted to controlled drugs since his incarceration in this case commenced. We accept the respondent’s submission that little weight be given to this latter letter as it seems to be dependant on what the appellant said to the writer in 2015. However, the sentencing judge accepted that the appellant was addicted to drugs, alcohol and gambling, as did the prosecuting garda. We are satisfied that the appellant has met the first part of the test. The second part of the test requires the court to be satisfied that the appellant’s addiction to controlled drugs was a substantial factor in the commission of the crimes under review.
20. Undoubtedly, there were a number of different factors at work in this case. We note the Act says “A substantial factor” and not “The substantial factor”. We are satisfied that the appellant’s addiction to controlled drugs was a substantial factor in the commission of the offence, and we direct that he be brought before Limerick Circuit Court for a review of a sentence once he has served the equivalent of half of his sentence.
21. In order to avoid doubt, we direct that he be brought before Limerick Circuit Court within four weeks of his completing 50% of the eleven year sentence now imposed by this Court and backdated it to the time that he first went into custody in respect of these matters, namely, 8th August, 2013.
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