Court of Appeal: Appeal against three-year sentence for cultivating €39,000 worth of cannabis plants dismissed

About this case:

• Citation:
  [2022] IECA 14
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Isobel Kennedy

The appellant argued that the sentence was excessive having regard to his personal circumstances and that appropriate allowance was not given for the mitigating factors in the case. It was also stated that the trial judge erred in ruling that the appellant was “dealing drugs for profit.” However, the court was satisfied that the trial judge properly applied the law relating to sentencing.

Background

In September 2019, gardaí attended the appellant’s address in Ballinasloe, County Galway on foot of a search warrant. They noted a strong smell of cannabis coming from the property and found that the entire upstairs had been converted into a cannabis grow house. Several walls were knocked through to create a large room sealed off by plastic sheeting with hydration and air filtration systems to assist growth.

The gardaí recovered 49 cannabis plants which had an estimated value of €39,200. The appellant was interviewed and accepted responsibility. He entered an early plea of guilty in the case.

At the sentencing hearing, the appellant relied on several factors in mitigation. It was submitted that he was a 52-year-old man who had a difficult upbringing, having lived in a care home in Wales from a young age. He had a number of previous convictions, although all were old convictions and did not relate to the Misuse of Drugs Act 1977. The appellant had worked in several jobs throughout his life, eventually becoming involved in the pub industry.

The appellant sold a pub in 2016 and moved to Galway to assist a support group call the Tuam Home Survivors Network. He continued providing assistance to the support group even though his savings dissipated over time. Subsequently, he borrowed money from third parties on the condition that he allowed his rented property to be used as a cannabis grow house.

The judge identified a headline sentence of four and a half years imprisonment, which placed the offending at the mid-range of the 14-year maximum sentence. It was held that the operation was a sophisticated commercial enterprise. The judge took the early plea of guilty and the appellant’s background into account, noting that the appellant was an otherwise law-abiding citizen with positive character references from those in the support group.

However, it was held that the mitigating factors did not lessen the gravity of the offence to a significant degree. Ultimately, the judge imposed a sentence of three years imprisonment with the final year suspended.

The appellant appealed the severity of the sentence, claiming that it was excessive in the circumstances. It was claimed that the judge erred by ruling that the appellant was “dealing drugs for profit.” It was submitted that there was no evidence that the appellant was dealing drugs for profit. Further, it was said that the judge ought to have given more credit to the mitigating factors (The People (DPP) v. McCormack [2004] IR 359).

In response, the DPP argued that the property was rented by the appellant and paid for in cash even though there was no evidence that the appellant was gainfully employed. The dpp relied on O’Malley’s Sentencing Law and Practice, noting that more extensive operations were likely to be for commercial gain and attract heavier sentences.

Further, the DPP submitted that sufficient consideration was given to the mitigating factors by the judge in circumstances where the final sentence was reduced by one third with the final year suspended.

Court of Appeal

In an ex tempore decision, Ms Justice Isobel Kennedy held that the appellant was clearly involved in a significant commercial operation which included considerable modification to his property, a large volume of plants, and hydration/filtration systems. The court stated that the judge’s remark that the appellant was “simply in the business of dealing drugs for profit” would have been phrased in a different way. However, the court was satisfied that the judge was referring to the commercial nature of the grow house and not to a separate offence of drug dealing.

The court held that the trial judge could not have ignored the surrounding relevant facts of the case. It was necessary to put the offending in context and the judge was entitled to take account of the appellant’s involvement in an extensive operation, the court said.

The court accepted that the appellant had strong mitigating factors in his favour, but held that the final sentence was within the margin of appreciation afforded to a judge (The People (DPP) v. Cunningham [2015] IECCA 2). Further, it was clear that significant mitigation was actually provided to the appellant by the trial judge. As such, there was no error in principle with the sentence.

Conclusion

The appeal was dismissed.