THE COURT OF CRIMINAL APPEAL [C.C.A. No: 28/09]
MacMenamin J.
Moriarty J.
deValera J.
Between/
The People (at the suit of the Director of Public Prosecutions)
Respondent
Judgment of the Court delivered by Mr. Justice MacMenamin on the 8th day of March, 2013
1. On the 12th December, 2008, the applicant was convicted of conspiracy to commit a crime punishable by law, i.e. the unlawful possession of cocaine for the purposes of selling or otherwise supplying it to another, in contravention of the Misuse of Drugs Regulations 1988, as amended, made under s. 5 of the Misuse of Drugs Act 1977, and contrary to s. 15 of the said Act. An accused convicted on indictment of this offence is liable “to a fine of such amount as the court considers appropriate or, at the discretion of the court, to imprisonment for life or such lesser period as the court shall determine, or, at such discretion, to both such fine and such lesser period of imprisonment” (see s. 27(3)(b) of the 1977 Act, as amended).
2. As was his entitlement, the applicant pleaded not guilty to the charge.
3. On the 28th January, 2009, Her Honour Judge Ryan, having heard submissions and evidence, sentenced the applicant to eight years imprisonment. The appeal against conviction was refused. A subsequent application to this Court to extend the grounds of appeal to include a point in relation to a search warrant under s. 29 of the Offences Against the State Act 1939 was subsequently brought, which application was heard, and refused on the 14th January, 2013.
4. In this case, there were three relevant co-accused including the applicant. Two other accused who were involved in the events, but in circumstances distinct from those in question, are not relevant to the issues raised in this appeal. The two co-accused, who also faced conspiracy charges, received sentences of five years (in the case of B.T.) and four years (in the case of J.G.). However, both pleaded guilty. All three were involved with receiving a consignment of cocaine. The other two were involved in the delivery of the consignment. The main issue raised in the applicant's appeal is that as the two other co-accused (J.G. and B.T.) received lesser terms, the sentence imposed on the applicant was excessive and that the trial judge erred in law in failing to have regard to the principles of conformity and proportionality between co-accused.
5. The applicant's argument hinges on a contention that the extent of the participation of the two relevant co-accused was comparable to that of the accused. The full evidence relating to the extent of the applicant's involvement in the enterprise of course arose from his own trial.
6. On the 14th September, 2006, the gardaí saw the applicant drive his car to a public house in Lusk. He collected B.T., one of the co-accused. They drove around the Lusk area for a period of time. The applicant brought B.T. back to a public house and he went home. Later, the applicant left his house for a second time. At that time he brought J.G. into Lusk in the car. He dropped him at a furniture shop there. Shortly after this, the applicant collected B.T., again from the public house and the two men then drove towards Skerries. Prosecution witnesses testified that the applicant and B.T. were observed meeting a lorry on the road, which was coming from the opposite direction. In the lorry, there were said to be two other men. The applicant turned the car and drove back towards Lusk. His car was then followed by this lorry.
7. The two vehicles arrived in the car park of the furniture store, where the applicant had dropped J.G. previously. The lorry pulled into the car park. The applicant stopped his car on the main road. B.T. got out of the car. J.G. had remained sitting on the wall outside the furniture shop. The applicant then drove off, and following on from that, a transaction took place between the two men in the lorry and, firstly, B.T., and, secondly, J.G. This involved the exchange of drugs and money. The gardaí intervened at this time and the four men in the car park were arrested. Approximately 20 minutes later, the applicant drove back along the same piece of road outside the furniture shop and he too was arrested. The gardaí recovered a white package from the lorry which contained some €85,000, and nine brown taped packages were also recovered from the van. The bags were found to contain approximately 8½ kg of cocaine with a street value approaching €600,000.
8. On the basis of this evidence, which indicated the applicant’s level of involvement and his specific role, he was convicted. The evidence established the extent to which the role played by the applicant. He separately drove both co-accused to the meeting point. He absented himself when the transaction took place, and thereafter, returned. This evidence differed very significantly from the case against the co-accused.
9. After conviction, at the sentencing stage, counsel submitted on behalf of the applicant that his participation in the events on the day in question indicated that he was a person who figured low down in the scale of things. This submission was not borne out by any evidence. In fact, the evidence tended to demonstrate that the applicant played a much more pivotal and central role in the transaction that led to his arrest. The applicant’s defence, which the jury rejected, was that he had been an entirely innocent and unknowing participant in any criminal behaviour and had merely been giving lifts to others during the course of the morning. The only other inference, which clearly was the jury's finding, was that the applicant had been involved at critical points in the morning transaction and, therefore, that he had a more central role. The evidence established that the role of the applicant involved a higher degree of participation than those two co-accused who had been travelling in the car with him.
10. The trial judge heard the entire case. She was also the sentencing judge. It was open to her as sentencing judge to infer, and she clearly concluded, that the applicant had been involved to a greater extent in the organisation of the transaction. The applicant did not testify. The jury had rejected the version of events which was put forward on his behalf. At the sentencing hearing, there was no evidence from the prosecuting garda, either during evidence-in-chief or in cross-examination, which would support any proposition to the effect that the applicant's involvement had been “low down” in the organisational chain in relation to the offence. The point was not put to the prosecuting garda who testified at the sentencing stage for his observations.
11. Mitigation can only apply if there is some evidence or material before a court to allow for such circumstances to be taken into account. No endeavour was made to explore what evidence might have been available by way of mitigation from the garda witnesses in relation to the applicant's level of involvement; nor was there any indication as to whether there was any other evidence which might have been of significance to the court by way of mitigation.
12. Counsel for the applicant asserts that his client was penalised for exercising his constitutional right to a fair trial and to plead not guilty. He asserts that the trial judge fell into error by taking into account the fact that the co-accused had pleaded guilty and, it is suggested, penalised the applicant for not doing likewise. This court does not accept this contention for the reasons just outlined.
13. In fact, the entirety of the conduct of the trial demonstrates a further frailty in this contention. In a ruling on an application during the trial, the sentencing judge actually observed that the first principle which operates is a presumption of innocence. It is true that the trial judge stated, at the sentencing stage, that she had to “mark the distinction between the guilty and not guilty plea”. However, this is in a context where she was asked by counsel for the applicant to suspend an element of the sentence already imposed by her. The judge is entitled to make a distinction between persons who have pleaded guilty and those who have not. The clear implication of what was said was that the judge had merely sought to do no more than consider the sentence that was actually warranted by the offence in this case, as it arose here, in the absence of a mitigating circumstance such as an early plea of guilty.
14. Mr. O’Malley in his book “Sentencing Law and Practice” (2nd Edition, 2006) observes at para. 6-31 that:
“Few jurisdictions if any make formal provisions for the amount of discount merited by a guilty plea, preferring to allow courts to assess the appropriate sentence reduction in light of the specific circumstances”.
15. There is, clearly a public interest which is served if offenders accept responsibility for their wrongdoing at an early stage. There is also a public interest in encouraging pleas of guilty so as to reduce pressure on the police and the justice system and to avoid the expense of lengthy trials.
16. The court does not accept that the sentencing judge failed to comply with the principle of conformity of sentencing. Conformity of sentencing is predicated on comparison of like with like. The fallacy of the argument, now advanced in this case, is comparing dissimilar circumstances and seeking to treat them similarly. That is an impermissible exercise.
17. At para. 6-91 of “Sentencing Law and Practice”, Mr. O’Malley states:
“It does not, of course, follow that all [co-accused] must receive the same, or even a similar, sentence. Each offender must be considered individually and given a sentence reflecting his level of involvement in the crime, his personal circumstances and previous record. As Gibbs C.J. said in R. v Lowe:
‘It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part that he or she played in the commission of the offence, have to be taken into account.’….
In People (DPP) v Poyning, Walsh J., said that it was often right to distinguish between co-offenders in light of their character, background and antecedents. The fact that one offender received a lenient sentence was not, in the court’s view, a ground for interfering with a longer sentence passed on another. However, it said that in any particular case it would investigate if different sentences were justified having regard to the character and antecedents (to which it might have added the degrees of criminal involvement) of the individual offenders, and would seek to discover if the differentiation was justified in light of those factors. A similar approach was adopted by the Supreme Court in People (DPP) v Conroy (No.2)…” (emphasis added)
18. Mr. O’Malley also identifies the correct approach to be adopted by an appeal court when reviewing a sentence on the basis of an alleged disparity. At para. 6-93, he states:
“The High Court of Australia discussed this matter at some length in R. v Lowe and R. v Postiglione. In the latter case, McHugh J. said that Lowe had decided that an appeal court may intervene:
‘…where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of the observer, that justice has not been done.’
The applicable test for this purpose is clearly an objective one. Most offenders who receive a sentence heavier than that imposed on a co-accused will feel aggrieved, but their feeling will not necessarily be justified. The importance of deciding if an applicant’s sense of grievance is objectively justified was stressed once again by the Court of Criminal Appeal in People (DPP) v Mackey. In that case, the court was fully satisfied that the trial judge had carefully distinguished the culpability levels of the three accused convicted of offences arising from the same incident. The appeal on this and other grounds was dismissed.”
19. What the trial judge did here was to look at all the relevant aggravating circumstances and those which mitigated the offence. These factors are outlined below. She clearly sought to identify where the offence lay on the scale of offences. She found that the charge was a serious one. She took into account the amount and type of drugs. She had heard evidence in relation to the extent of the applicant’s involvement. It cannot be ignored that the amount of drugs involved in the offence was almost some €600,000 worth of cocaine, a large amount of cash, and a well orchestrated delivery system.
20. A number of matters were pleaded in mitigation. These included (a) the applicant’s age; (b) his family background; (c) the effect that a custodial sentence would have on his partner and young children; (d) efforts which the applicant had made to better his life through education and his enrolment in college having left school early; (e) the fact that the majority of the accused’s previous convictions were for road traffic offences; and (f) that there had been no previous convictions under s. 15 or s. 15A of the Misuse of Drugs Act. The applicant’s wife testified at the sentencing hearing.
21. However, it must be borne in mind that there were aggravating factors. These included (i) the nature of the offence; (ii) the amount of drugs; and in addition, (iii) the fact that the accused had 22 previous convictions, including two previous convictions for offences contrary to s. 3 of the Misuse of Drugs Act, which had both been dealt with summarily in the District Court.
22. The two other persons who travelled with the applicant in the car received, respectively sentences of five years and four years. In DPP v Tiernan [1988] I.R. 250, Finlay C.J. noted that:
“A plea of guilty is a relevant factor to be considered in the imposition of a sentence and may constitute, to a greater and lesser extent, in any form of offence, a mitigating circumstance”.
23. The question is whether the sentence of eight years imposed by the learned trial judge is outside the range of appropriate sentences applicable in a case of this type. Did the sentencing judge err in principle? The critical factors, in the view of this court, have been outlined in the course of this judgment. They rendered the circumstances of this applicant and the degree of culpability quite different from his co-accused. This court will only interfere if it be shown that the sentencing judge had erred in principle or had misunderstood or wrongly assessed some salient feature of the evidence. The test therefore must always be an objective one as to whether there has been an error in principle.
24. Mr. O’Malley also notes at para. 34-09:
“One well-established principle of the error in principle doctrine is that an appeal court should not interfere with a sentence merely because it might have imposed a different one had it been dealing with the matter at first instance.”
25. There is no doubt that the sentence here exceeds those which were imposed on the co-accused. However, clearly, there was evidence before the trial judge that the applicant’s level of engagement was in excess of the two relevant co-accused. This court recognises that trial judges are well situated in order to assess what is, actually, the “run of the trial” and the evidence which is before it. The fact that an applicant must demonstrate an error in principle implies that it is unlikely that this court will intervene in circumstances where the applicant’s true case is that the sentence is, but only to a degree, at the higher end of the range of sentences normally applicable in this category.
26. In the view of this court, no such circumstance has been demonstrated here. This court has had regard to the totality of the circumstances, as did the trial judge. The court has had regard to the personal character references regarding the applicant which have been supplied to the court. However, no error in principle has been shown. As a consequence, this court takes the view this application must be refused.
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