THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Edwards J.
65/14
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
JUDGMENT of the Court (ex tempore) delivered on the 18th day of July, 2016,
by Mr. Justice Birmingham
1. This is an appeal against severity of sentence. The sentence appealed is one of eight years imprisonment with the final two years suspended that was imposed on the appellant on the 28th February, 2014, in Cork Circuit Criminal Court following a plea of guilty to an offence contrary to s. 15A of the Misuse of Drugs Act. On that day a concurrent sentence of twelve months imprisonment was imposed in respect of certain unlawful possession of firearms charges.
2. The background to the offence is that on the 14th February, 2012, gardaí had mounted a surveillance operation which had targeted Mr. Donal Ryan. It would seem that the surveillance operation had been in place for some time at that point. In any event on the 14th February, while subject to surveillance Mr. Ryan was first seen at the house of his brother Con in Mallow and they then went from there to an isolated church at Annakisha. There Mr. Donal Ryan was seen to get out of the van which was being driven by his brother and reach in behind the wall of a graveyard and remove a bag. He got back into the vehicle with the bag and they drove off. The vehicle was stopped and the bag was recovered on the lap of Mr. Ryan. It contained 4.847kgs of cannabis with a street value of €96,900.00. In a follow up search of Mr. Ryan’s home, an airgun, a stun gun, a silencer and pellets were recovered. Also located was a sum of €4,364 in cash.
3. Mr. Ryan was arrested, and during the course of the subsequent detention interviewed. He admitted responsibility for the cannabis stating that his role was to collect and store this. He admitted involvement in this type of activity for eight months. His interviewers put it to him that his involvement was at a higher level than he was accepting and he did not accept that proposition. The passage of the transcript that deals with this aspect merits quotation prosecution counsel asked “was he arrested and detained, was he interviewed” and the response of the investigating member Detective Sergeant who was giving evidence:
“He was interviewed he admitted responsibility for the cannabis, there was - he claimed that he was acting as a store man, that he was to receive between €500 and €1,500 to collect these drugs and activity he admitted that he was involved for an eight month period in collecting substantial quantities. He was challenged in relation to the extent of his involvement, but he continued to portray himself in this particular light. But this was not accepted by the State and that was put to him quite significantly in the course of his interviews.”
4. Insofar as the firearms aspect of the case is concerned, it was accepted by the prosecution that these were not linked drugs activity and indeed the prosecution accepted that these offences were of little consequence in the overall scheme of things and that the focus of the court should be on the s. 15A Misuse of Drugs Act offence.
5. In terms of the background and personal circumstances of the appellant, the court was told that he was 47 years of age and was residing with his partner and young child in Mallow. In evidence the investigation garda indicated that Mr. Ryan was on disability allowance, but added that otherwise his circumstances were quite lavish, referring to the fact that while he had a Council house in Mallow, that he was not staying there, but was renting a private dwelling elsewhere in Mallow where he was paying approximately €700 a month in rent. There was also reference to the fact that he was driving a Q7 2009 jeep and that he had quite a substantial lifestyle.
6. On the question of an inquiry under s. 4 which surfaced, the court was told that an inquiry would not be appropriate as there was a Criminal Assets Bureau involvement. Defence counsel intervened to indicate that an agreement with regard to certain matters had been reached with CAB.
7. Counsel today has asserted that CAB returned items of property including the Q7 jeep and has also said that contrary to what the Circuit Court was told that the appellant’s partner was working and that explained the reasonably comfortable lifestyle.
8. The Court was told that the appellant had no previous drugs convictions. Two assault convictions were recorded, one in the UK. However, it was indicated by the defence that the relevance of the domestic assault that was recorded was challenged as it had been successfully appealed. In any event the trial judge stated that he was going to approach the case on the basis that there were no previous convictions and it seems he did just that. The court was told that there were medical issues involving chronic depression and also a difficulty with a kidney following an accident. There was also reference to that fact that Mr. Ryan had cocaine difficulties in 2007, but that he had managed to deal with this himself.
The judge’s sentencing remarks
9. The judge first addressed the question of whether there was scope to depart from the mandatory presumptive minimum and stated that because of the plea of guilty, because of the admission in relation to the drugs, because of the particular medical situation and the long existing depression that there was sufficient material present to allow him to depart. However the judge said that this a well organised determined dealing. The appellant was prepared to admit his own involvement, but did not give further assistance of any benefit thereafter. The judge then referred to the fact that the garda evidence put him at a higher than usual level of involvement in a country area. The appellant takes issue with that observation by the sentencing judge. The judge then added that the accused was not a drug addict so that what he gleaned from the evidence that the offence was being committed for profit and he then proceeded to impose the sentence that is now appealed.
10. This reference to a higher than usual level may have been prompted by the evidence in relation to lifestyle, but it may also have its origin in a remark made by the investigating garda Detective Sergeant O’Brien who having referred to the search of the appellant’s home where the firearms and €4,364 in cash had been recovered, added that other locations were also searched as it was believed that the man was laundering the proceeds of his drug activity. At that stage counsel for the defence interjected immediately and the Detective Sergeant was told not to go outside the scope of the offence by prosecution counsel.
Submissions on behalf of the appellant
11. The appellant says that this was a case where the plea was entered at the earliest possible date, but that while the judge acknowledged that there had been a guilty plea, he did not go further and addressed the stage at which this had been indicated. It is also submitted that the judge erred by taking the view that the appellant was involved in the sale and distribution of drugs on a greater scale within the wider community and that he had embarked upon the enterprise deliberately and with a view to making financial gain.
12. In support of this submission, the appellant refers to the remarks made by the Detective Sergeant about laundering the proceeds of drug activity, which he says ought never to have been made and which served to contaminate the sentencing process.
13. Counsel for the appellant submits that the evidence in relation to lifestyle and personal circumstances, the reference to a rented private residence, the motor vehicle that was driven and so on, led the judge into error and caused the judge to suspect that Mr. Ryan’s involvement was at a higher level when there was no admissible evidence to support that view.
14. The background and the circumstances of those coming before the courts on s. 15A charges vary very significantly. In some cases those involved are mules, in some case couriers, in some cases individuals who have been pressurised to store or move drugs because they have accumulated drug debts. In some cases it is accepted that there is no financial gain, the only benefit being some forbearance in relation to debts that have been accumulated. In other cases the indication is of payment in kind with the individual being provided with a supply to feed that individual’s own addiction.
15. Mr. Ryan does not fall into any of those categories. Even if one ignores entirely the evidence in relation to lifestyle and personal circumstances and one takes at face value the answers that he gave to gardaí on which he was challenged, that he was acting as a store man was to receive between €500 and €1,500 for collecting the drugs that he was involved in that activity for an eight month period collecting substantial quantities, that puts him at a significant level and certainly not on the bottom rung of the ladder.
16. This was a case where a presumptive minimum sentence was applicable. The judge felt that there were factors present which permitted him to depart from the presumptive mandatory minimum. No issue has been taken with correctness of that conclusion. However, had the judge felt that the such factors as were in favour of Mr. Ryan could not be see as exceptional so as to justify departure from the presumptive statutory minimum, it cannot be regarded as a foregone conclusion that the appellant would have succeeded in identifying an error in principle in that regard. But in fact the judge departed significantly from the presumptive minimum provided for by statute reducing the sentence first from ten years to eight with two years suspended so from ten to an effective six years. Departing to that extent, might indeed be seen as generous. Certainly it could not be said that the sentence that was imposed was so severe as to fall outside the available range of penalties.
17. The court cannot identify any error in principle and must dismiss the appeal.
