Court of Appeal: Man sentenced to five years’ imprisonment for cultivating cannabis in his attic loses appeal
A man who was convicted of cultivating over one hundred cannabis plants in the attic of his home in Tipperary has lost an appeal against the severity of the five-year sentence imposed upon him by Clonmel Circuit Court.
Finding no error in principle with the sentence, Ms Justice Máire Whelan said the man’s conduct, including his ninety-two previous convictions, demonstrated a “significant disregard for the law”.
Exorbitant consumption of electricity
Mr Wesley Purse, a Welsh national, lived in the State since 2012 or 2013. In May 2017, Gardaí obtained a search warrant for a house rented by Mr Purse in Ballydavid, Co. Tipperary, in relation to which enquiries had indicated tampering with ESB meters and exorbitant consumption of electricity was occurring at the house.
Over one hundred cannabis plants were found in the attic and an upstairs bedroom, together with equipment for cultivation and harvesting of cannabis plants. A further €250 worth of cannabis herb was located in the kitchen. Evidence before the Court indicated that the cannabis had a total valuation of €42,000, which was not disputed by Mr Purse.
Mr Purse was arrested for possession of a controlled drug for unlawful sale or supply (s.15 of the Misuse of Drugs Act).
Ninety-two previous convictions
It transpired that Mr Purse had ninety-two previous convictions, thirteen of which were for drugs offences, committed outside the jurisdiction and dealt with before the courts of either England or Wales.
In Stafford Combined Court in 2016, Mr Purse had been convicted of supply and control of class A drugs, and sentenced to twelve years’ imprisonment. Ms Justice Whelan said it was not clear whether he was convicted in absentia or how he came to be at liberty.
In February 2018, he pleaded guilty at Clonmel Circuit Criminal Court to:
- Possession of a controlled drug for unlawful sale or supply in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s.5 of the Misuse of Drugs Act 1977 contrary to s.15 and s.27 (as amended) of the Misuse of Drugs Act 1977.
- Unlawful possession of a controlled drug contrary to s.3 and s.27 (as amended) of the Misuse of Drugs Act 1977; and
- Cultivation of cannabis contrary to s.17 and s.27 (as amended) of the Misuse of Drugs Act 1977.
Accepting the valuation of €40,000 as the true valuation of the drug seized, His Honour Judge Teehan regarded the substantial quantity of drugs as an aggravating factor. He also noted Mr Purse’s “enormous number of previous convictions”, and his most recent conviction as being an indication that Mr Purse had been “involved for some time in the very nefarious drugs trade”. That Mr Purse initially gave a false name was also “in a small way, an aggravating factor”.
Judge Teehan also considered the numerous mitigating circumstances submitted on Mr Purse’s behalf, including his early guilty plea, his cooperation with the Gardaí, and the fact that he apologised for his actions. Judge Teehan also took into consideration the fact that “harder drugs” were not involved, that Mr Purse would face greater difficulty spending time in an Irish prison as a foreign national, and that he would be “facing a lengthy spell of incarceration in Wales” upon his release.
Mr Purse was sentenced to five years imprisonment in respect of count one, and four years’ imprisonment in respect of count three – to run concurrently from the date of his arrest. Count two was taken into consideration.
Court of Appeal
In the Court of Appeal, Mr Purse appealed against the severity of his sentence, arguing that the trial judge erred in
- Identifying a headline sentence of eight years and imposing a five-year custodial sentence for count one was unduly harsh and not proportionate;
- Imposing a four-year custodial sentence for count three and same was unduly harsh and not proportionate;
- Determining that the offence in count three was within the upper end of mid-range of the scale of gravity in respect of drug offences;
- Determining that the offence specified in count one was within the middle range on the scale of gravity in respect of drug offences;
- Failing to properly assess the mitigating factors, including the:
- Early plea of guilty;
- Cooperation with the investigation;
- Expression of remorse;
- Peculiar circumstances between the accused and his family;
- Failing to have adequate regard to Mr Purse’s circumstances and the fact that he has to serve a twelve year sentence in the UK upon the expiration of the within sentences.
Ms Justice Whelan said the sentencing judge was entitled to have regard to the very serious similar offences committed in the neighbouring jurisdiction, and that the offences Mr Purse committed in Ireland happened at a time when he ought to have been serving a twelve year sentence in the UK – a “very significant further aggravating factor”. The judge was also correct to consider the value of drugs seized as a significant aggravating factor.
satisfied that the sentencing judge did have regard to every mitigating factor raised, Ms Justice Whelan said it was clear from the transcript that the sentencing judge had carried out a comprehensive balancing exercise, and considered the matter as having exceptional and specific circumstances to warrant a lesser penalty.
Ultimately, the Court was satisfied that proportionate sentence was established and imposed in respect of both offences. Ms Justice Whelan said Mr Purse’s conduct, including his ninety-two previous convictions, demonstrated “his significant disregard for the law”.
Finding no error in principle, Ms Justice Whelan said the court ought not to interfere with the sentence and dismissed the appeal.
- by Seosamh Gráinséir for Irish Legal News
© Irish Legal News Ltd 2020