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THE COURT
OF CRIMINAL APPEAL
Murray C.J. 182
CJA/04
O’Sullivan J.
O’Leary J.
IN THE
MATTER OF THE CRIMINAL JUSTICE ACT, 1993,
SECTION 2
BETWEEN
THE PEOPLE
AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT
-v-
INGRAM MCGINTY
respondent
Judgment of the Court delivered the 3rd day of April, 2006 by
Murray C.J.
In this matter the accused was convicted of one offence, to
which he had pleaded guilty, of unlawful possession of controlled
drugs with an aggregate market value of €13,000.00 or more for the
purpose of sale or supply in contravention of the Misuse of Drugs
Regulations, 1988 and 1993 and contrary to s. 15A of the Misuse of
Drugs Act, 1977 as amended. The offence related to a quantity of
cannabis resin and cocaine which the accused was found to have in
his possession on 23rd April, 2003. On 29th July, 2004 he was
sentenced to five years imprisonment suspended on entering into a
bond to keep the peace and be of good behaviour for a period of five
years and to complete the rehabilitation course which he was then
pursuing.
The
D.P.P. has appealed the sentence in this case on the grounds of its
undue leniency.
As will be explained below it is agreed that this is not a
case for a ‘mandatory’ sentence.
Section 27 of the Misuse of Drugs Act,
1977, as amended by s. 5 of the Criminal Justice Act, 1999 provides
for the sentencing of persons convicted of an offence under s. 15A
in the following manner:
"(3A) Every person
guilty of an offence under s. 15A shall be liable, on conviction
on indictment –
(a) to imprisonment
for life or such shorter period as the court may, subject to
subsections (3B) and (3C) of this section, determine,
and
(b) 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 s. 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 matters 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
(b) whether that person materially assisted in the
investigation of the offence.”
The appeal by the D.P.P. arises in the
context of the provisions of s. 15A of the Act of 1997, as amended,
and in particular subsections (3A), (3B) and (3C) of s. 27 of that
Act.
Subsection
(3B) provides that the court shall specify as the minimum period of
imprisonment for a person convicted of an offence under s. 15A a
period of not less than 10 years.
This section has sometimes been
misleadingly referred to in public debate as if the Oireachtas
intended that in all cases of a conviction under s. 15A a minimum of
10 years imprisonment should be imposed.
As the D.P.P., through his counsel,
has properly acknowledged this is far from the case.
In subsection (3C) it is
expressly provided that subsection (3B) “shall not apply where the court is
satisfied that there are exceptional and specific circumstances
relating to 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 matters it considers
appropriate …”
Among the matters
expressly provided for, to which the court may have regard, but it
is not confined exclusively to those matters, is whether the accused
pleaded guilty and if so at what stage and whether he personally and
materially assisted the Gardaí in their
investigation.
It
is not in issue that at the time of sentencing both of those
elements were present in this case as indeed were the other elements
referred to by the trial judge in the course of sentencing the
accused.
It is
accepted by the D.P.P., and again properly so, that the learned
trial judge acted correctly in deciding pursuant to s. 27 (3C) that
this was not a case in which the provision for a minimum term of 10
years imprisonment in subsection (3B) applied. In other words the
D.P.P. accepted that there are, in this case, exceptional and
specific circumstances relating to the offence which would have made
a sentence of not less than 10 years unjust in all the
circumstances.
The
court concurs with that view and accordingly, it is not in issue in
this appeal the subsection (3B), does not apply to this
case.
But of
course what the D.P.P. does argue in this appeal is that the
imposition of a suspended sentence rather than a custodial sentence
was unduly lenient. It was submitted that the sentence imposed did
not reflect the seriousness of the offence, having regard to its
nature, and the quantity and value of the drugs involved. It was
submitted that the sentence imposed was significantly below the
range of sentences that are usually imposed for this type of
offence. It was also submitted that sentence failed to have any or
sufficient regard to, or relationship with, the minimum penalty as
envisaged by the legislation and that the sentencing judge gave
insufficient weight to the intentions of the legislature.
There is no doubt
that the possession of illegal drugs for the purpose of sale or
supply, particularly in any significant quantity, is a very serious
offence which of itself would normally warrant a custodial sentence.
Insofar as the submission of the D.P.P. contends that a judge
sentencing a person for such an offence should also have regard to
the gravity attached to this by the Oireachtas in providing for a
maximum sentence of life imprisonment and a minimum of 10 years
imprisonment the Court agrees. Both the inherently serious nature of
the offence and the seriousness with which the offence has been
viewed by the Oireachtas as expressed in the relevant statutory
provisions, are matters for a trial judge to take into account when
deciding on sentence. Thus even in cases where a trial judge
properly concludes that subsection (3B) as regards the minimum term
of imprisonment does not apply to the particular case before him or
her, the appropriate sentence should normally involve a term of
imprisonment, including, depending on the circumstances, a very
substantial term of imprisonment.
However, insofar as the submission of
the D.P.P. contended that a suspended sentence must always, and in
every circumstance, be considered wrong in principle, the Court does
not accept that this is a correct principle to be applied. First of
all there is nothing in the legislation to suggest that the
Oireachtas intended to compromise to that extent the judicial
function to impose the appropriate sentence in the circumstances of
the case. On the contrary, the Oireachtas expressly provided for a
trial judge to exercise his or her judicial discretion according to
the justice and circumstances of the case when it provided for the
non-application of subsection (3B) in certain circumstances.
Generally speaking legislation is incapable of dealing specifically
with the vast range of circumstances and factual elements that
differentiate one case from another even though they involve an
offence under the same section and this the Oireachtas has
recognised in the provisions just referred to. It cannot be said
that there could never be circumstances in which, having regard to
the interests of society as a whole, the facts of the particular
case and the circumstances of the accused, where a suspended
sentence would be appropriate. Undoubtedly a trial judge sentencing
a convicted person for an offence such as that in question here is
constrained by the considerations already referred to above to
consider that a term of imprisonment is normally what should be
imposed. However, where there are special reasons of a substantial
nature and wholly exceptional circumstances, it may be that the
imposition of a suspended sentence is correct and appropriate in the
interest of justice. This is a combination of factors which could
only arise in a relatively rare number of cases. This Court has
previously upheld a sentence of such a nature in the case of
D.P.P. –v-
Alexiou
[2003] 3 I.R. because there were such exceptional circumstances and
special reasons.
The question which arises in this appeal is whether the trial
judge erred in principle in the sentence which he imposed in this
particular case or whether there were such special reasons of a
substantial nature and particularly exceptional circumstances which
made the sentence imposed appropriate or at least one which was not
unduly lenient.
The factual background of this case
It is clear that the learned trial
judge had regard to and took into account on the one hand the
seriousness of the offence and the public interest and on the other
hand the general background and history of the accused when
determining sentence. In this regard he relied, first of all upon
and accepted a report from the Principal of the Community College
attended by the respondent in his teenage years. This disclosed that
his family came from the west of Ireland and, when the respondent
was quite young, emigrated to the United Kingdom. Having accumulated
the necessary finance there they returned to Dublin to open a
restaurant which in the event proved unsuccessful. Debts were high
and this resulted in serious tensions within the family. The parents
separated with the father returning to the UK. The family were left
to fend for themselves and were initially taken into care until
eventually provided with a house.
The College Principal noted that the
respondent was among the brighter students scoring 96 % in his
mathematics test. He said he was rated among the highest percentile
of the population. Having initially performed well at school the
family situation had a traumatic effect on his progress. Had he had
a more supportive environment and with the help of a strong family
he was of the view that the respondent could have successfully gone
on to third level education. He also stated that the respondent had
a potential that he now realises he should exploit in a more
positive way. His brother and sister have had successful careers in
other sectors. Although he roundly condemned the kind of offence
which the respondent had committed he expressed a hope that he could
be dealt with in a way that did not involve a prison sentence. The
trial judge clearly attached weight to these views coming from a
person of standing in the community with serious responsibilities
for young people.
The respondent had in fact left school following his Junior
Certificate and was subsequently trained as a carpenter and had some
significant success in this field. It was not disputed that, on his
own admission he developed a dependency on cocaine while he was on
good earnings from his business as a carpenter. When some of his
contract work slowed down he got into debt with the suppliers of the
drug which led to him working for them. On the evidence the learned
trial judge found that his involvement in the offence arose from his
drug addiction and the pressure to pay off his drug debts rather
than the amassing of personal wealth from that activity as a
business.
The
respondent was born in 1974 and was 29 years of age at the date of
the offence. He had some relatively minor previous convictions which
it was not contended were of any significance for the purpose of
sentencing on this offence. At the time of his arrest he was
interviewed at length by the investigating Gardaí and cooperated
fully concerning the location and extent of the drugs in his
possession which were the subject of the charge. He also claimed
that at the time he was trying to break his cocaine dependency,
clear off his debts and escape from the situation that his drug
addiction had brought him into. This does not seem to have been
seriously disputed by the Gardaí but what the learned trial judge
attached particular importance to was not simply the decision of the
respondent, about one month after his arrest and charge, to
participate in a programme at Coolmine House with a view to ending
his addiction but extent of his success in that
programme.
Evidence was given by a staff member of Coolmine House
concerning how the respondent presented himself for treatment at the
Coolmine Centre and the assessment carried out as to whether he
could be considered suitable for their day programme. At the time of
presentation he was in the throws of symptoms of withdrawal from
cocaine addiction. According to the witness from the Centre the
respondent was initially assessed as a person that needed
rehabilitation “… that
he had got a lot of honest values, morals, beliefs and principles in
life before he became dependent on drugs. A lot of his programme was
based around reinforcing these old values … and learning the value
of honesty and change – changing his behaviour, or his criminal
behaviour and addiction related behaviour”. At the time of the trial he had been
some 14 months continuously on the programme. The evidence was that
during that time he had been subjected to some 75 tests for the
presence of drugs in his system. None had disclosed such presence
and there was nothing in his behaviour to indicate any form of
relapse. He was so successful in the programme that he became a
programme leader and was entrusted with a lot of different tasks
from a day to day and week to week basis. According to the witness
this meant that he was considered to be a person that demonstrated
and practiced honesty, consistency and responsibility in all areas
of the recovery for other clients of the Centre. He was a role model
for them to look up to. He also would have been entrusted to look
after certain groups in evening time activities and some workshops
of an educational nature. He helped others in their efforts to get
off drugs. By the time of sentencing he was in an aftercare
programme which had commenced in the previous February. The witness
from Coolmine stated that the change between the respondent at the
beginning of the course and what he had become in the meantime was
immense. Throughout the period he attended at the Centre voluntarily
and daily.
In
addition to then attending the Coolmine programme for his drug
addiction the respondent requested to take part in a programme run
by the Centre on parenting difficulties. This is relevant to the
fact that the respondent has a young son, in his early teens, by a
partner from whom he was estranged during the period of his
addiction. He is now reconciled with his son. It was for this reason
he took part in the parent to parent course in Coolmine to help his
parental skills with his teenage son. This course lasted six weeks.
Consequent upon his progress in the drug rehabilitation and the
parent to parent course he developed a very full relationship with
that son, a teenager.
In providing a written report to the Court Coolmine has
pointed out that it was their policy to have complete cooperation
with the courts and the probation welfare services. It stated that
throughout the phase one of the programme the respondent
“challenged and
modified his addiction related behaviours and criminal behaviours.
He struggled to adapt to a new way of living but after time and
adjustment he became a leading member, an advocate, of the
programme. This change came after a large amount of group therapy
and one to one counselling that the respondent applied to his
lifestyle in all areas”. In July 2004, the time of his sentencing, it stated that at
present he was a self-employed carpenter and continued to attend his
group therapy once a week and one to one counselling as per the
aftercare requirements. He was stated to be consistent in all areas
of his recovery and adheres to all programmes rules and
policies.
There
was also evidence that his improved relationship with his son had
had positive consequences. Reports on his son from his school for
the period September 2002 to 2003 was rather negative. He received
the lowest or second lowest scoring in many aspects of his subjects,
was easily distracted, tended to distract of others and needed
plenty of help at home. His report for the following year noted that
he had progressed very well having matured behaviourally and
academically. He was working well in class and his overall attitude
to work and school was much better. His marks generally were much
better being mostly in the A, B and C range. This was put forward as
being due to improved relationship and support from his
father.
The
learned trial judge also had evidence, by way of letters, from
firms, former or prospective employers of the respondent, which he
accepted and which was to the effect that he had done excellent work
as a carpenter for at least one of them in the past and that his
prospects of further work from those firms was
excellent.
The sentence
Detailed reference has been made to the evidence concerning
the respondent’s participation in the drug rehabilitation programme
and his progress in relation to it because the trial judge placed
primary reliance on this in deciding the sentence he would impose.
He adverted to the serious nature of the offence and the gravity
with which it had been viewed by the Oireachtas and that such cases
generally warrant a custodial sentence. In attaching special
importance to the degree of rehabilitation which had already been
achieved by the respondent he stated at one point:
“In all my years in
drugs work as a barrister, senior and junior, and in the last
nearly 8 years as a judge I haven’t seen as comprehensive a
testing over a long period. This is a man who has done
consistently, on the data supplied, which is in law independent
corroboration, drug free”.
When sentencing the accused he
concluded that the respondent had:
“… cleared himself of
a very savage addiction. A good father to a growing up son. He
has improved his life and he is still trying and, Mr. Ryan
supports that, at a high level of insight, motivation and effort
to change his way of life, and I am satisfied he is well on the
road to that.”
There was ample evidence before the learned trial judge to
support those conclusions. At another point he stated that the
respondent was “a man
who is different in degree and in kind” on account of the drug-free progress
he had made over a period in excess of a year.
It is clear that the trial judge was
conscious of the fact that if one had regard only to the seriousness
of the offence in itself a custodial sentence was merited. As this
Court has frequently stated a judge imposing sentence must not only
have regard to the seriousness of the offence but also the
particular circumstances of the offender and, in that light, impose
a sentence which best serves the public interest and the interest of
justice.
While a
custodial sentence would serve certain objectives such as deterrence
and punishment it is clear that he nonetheless had to consider
whether it was in the interest of society that the proven
substantial progress in rehabilitation and strong prospects of full
rehabilitation through participation in the Coolmine programme would
be put at risk by removing the respondent from that programme and
putting him into a prison environment for a significant period.
There was no evidence whatsoever offered by the State as to the
existence let alone efficacy of an in-prison drug rehabilitation
programme as compared with the one that the respondent was actually
undergoing in Coolmine. This was the respondent’s first conviction
for a drug offence, serious as it was. There was strong independent
evidence of the important level of rehabilitation already achieved
by the respondent and the strong likelihood of complete
rehabilitation so that he could lead a law abiding life as a citizen
and continue to support his young son.
This is not to say that that a
non-custodial sentence would be justified only because a person
charged with a serious drug offence voluntarily enters upon a drug
rehabilitation programme and progresses well in it. As the learned
trial judge pointed out there were a range of exceptional factors at
play in this case which included the aptness of the respondent for
such a programme, as assessed initially, the level of success in an
intense and difficult programme to which the respondent himself
contributed by becoming a leader and role model in the programme and
a promoter for other persons seeking to rehabilitate themselves and
his exceptional period of proven abstention from drugs. This was in
addition to the other mitigating factors already referred
to.
The dilemma
faced by the trial judge was that the offence in question was
undoubtedly grave enough to normally warrant a custodial sentence,
as argued in this appeal by the D.P.P., while on the other hand any
meaningful custodial sentence, by removing him from the
rehabilitation programme in which he was at an advanced aftercare
stage, ran the real risk of seriously damaging his prospects of
rehabilitation. This was in the context that the trial judge had
concluded, as he was entitled to do on the evidence before him, that
there was a high probability that if he continued with the advanced
stages of that programme his rehabilitation would be complete and
successful. Complete rehabilitation of drug addicts is notoriously
difficult while at the same time an important part of penal policy
since if successful it reduces dramatically the risk of repeating
offences and imprisonment of addicts.
In carrying out this difficult balance
as to where the public interest best lay the trial judge clearly
decided that its interests were best served by permitting the
respondent to see through his rehabilitation to a probably
successful conclusion. Such rehabilitation was more likely to ensure
that the respondent would be a law abiding citizen in the future
than if his rehabilitation programme was terminated by a prison
sentence.
The
totality of factors which the judge took into account could
reasonably be considered as wholly exceptional circumstances and
special reasons of a substantial nature which indicated that the
accused was exceptionally “different in degree and kind” from other cases and which led him to
make the decision on sentencing which he did.
Should the respondent commit a
criminal offence or otherwise be in breach of his bond to keep the
peace and be of good behaviour he will face the prospect of serving
a five year sentence.
In an appeal of this nature it is not for this Court to
decide what sentence it would or would have imposed in the
circumstances but whether the trial judge so erred in principle that
his sentence should be quashed as being unduly lenient. The onus is
on the D.P.P. to establish that this was the case. This was a finely
balanced decision by the learned Circuit Court Judge and the Court
is not satisfied that the D.P.P. has discharged the onus on him in
the particular circumstances of this case.
Accordingly, the appeal is
dismissed.
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