Court of Appeal affirms man’s 8-year sentence for €100k cannabis find

About this case:

• Judgment:
  External link

Justice Birmingham agreed with the decision of the trial judge to depart from the presumptive mandatory minimum sentence, stating that the man was more involved in the supply of drugs than he would admit.

Following a plea of guilty to an offence contrary to s. 15A of the Misuse of Drugs Act, Mr Donal Ryan was sentenced to eight years imprisonment with the final two years suspended on the 28th February 2014, in Cork Circuit Criminal Court. On that day a concurrent sentence of twelve months imprisonment was imposed in respect of certain unlawful possession of firearms charges.

Mr Ryan sought to appeal the decision on the basis that the trial judge had taken inadmissible factors into account.

Background

On the 14th February 2012, Gardaí had mounted a surveillance operation which had targeted Mr Donal Ryan. On the 14th February, while subject to surveillance Mr Ryan was caught with a bag containing 4.847kgs of cannabis with a street value of €96,900.00.

In a follow up search of Mr Ryan’s home, Gardaí recovered €4,364 in cash, an airgun, a stun gun, a silencer, and pellets.

After Mr Ryan was arrested, he admitted responsibility for the cannabis, and involvement in this type of activity for eight months.

“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.”

In relation to the firearms aspect of the case, 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.

At the time of his arrest, Mr Ryan was residing with his partner and young child in Mallow. Gardaí indicated that Mr Ryan was on disability allowance, but added that otherwise his circumstances were quite lavish – in addition to driving a Q7 2009 jeep, Mr Ryan rented a private dwelling in Mallow where he was paying approximately €700 a month in rent, despite having a Council house in Mallow.

Counsel for Mr Ryan asserted that CAB returned items of property including the Q7 jeep and also said that contrary to what the Circuit Court was told that Mr Ryan’s partner was working and that explained the reasonably comfortable lifestyle.

Trial judge’s sentencing remarks

The judge first addressed the question of whether there was scope to depart from the mandatory presumptive minimum – recognising the plea of guilty; the admission in relation to the drugs; the particular medical situation and the long existing depression.

However the judge said that this was a well-organised determined dealing, and Mr Ryan was prepared to admit his own involvement, but did not give assistance of any benefit thereafter. Furthermore, the accused was not a drug addict so the offence was being committed for profit.

The judge also referred to the fact that the Gardaí evidence put him at a higher than usual level of involvement in a country area.

Submissions on behalf of Mr Ryan

Mr Ryan 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 Mr Ryan 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.

In support of this submission, Mr Ryan 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.

Counsel for Mr Ryan submits that the evidence in relation to lifestyle and personal circumstances 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.

Conclusions

Justice Birmingham explained that the background and the circumstances of those coming before the courts on s. 15A charges vary 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”

Justice Birmingham was satisfied that Mr Ryan did 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 evidence put him at “a significant level and certainly not on the bottom rung of the ladder”.

While 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, and Justice Birmingham was satisfied that it could not be said that the sentence that was imposed was so severe as to fall outside the available range of penalties.

Consequently, Justice Birmingham stated that he could not identify any error in principle and dismissed the appeal.