Court of Appeal: Increased sentence for man guilty of importing €2.7m worth of diamorphine

About this case:

• Citation:
  [2021] IECA 350
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Isobel Kennedy

However, it was held that the sentence was unduly lenient having regard to the seriousness of the offence and was a substantial departure from the norm. As such, the court imposed a sentence of eight years with the final 18 months suspended.

Background

In August 2020, the UK authorities notified the Irish authorities of a suspicious package which was due to arrive in the State. On inspection, the package was found to contain 20 wrapped rolls of diamorphine. A garda operation was put in place to continue with the delivery in order to track the recipient.

The label on the package was addressed to the defendant and was delivered to his work address. The defendant received the package and send a photograph of it to his co-accused. He then put the package in his vehicle and he drove with the co-accused to another premises where the package was dropped off.

The defendant was later arrested and detained by gardaí. The package was found to contain nearly 20 kilogrammes of diamorphine with an estimated street value of €2.7 million. The defendant was cooperative during his interview and provided information to gardaí. Additionally, the defendant provided access codes to his phone which was accepted to have assisted the investigation.

The defendant pleaded guilty to the offence. At the sentencing hearing, the defendant relied on inter alia his early plea of guilty, that he was a person of previously good character and that he had a gambling addiction which led to his involvement in the criminal activity.

The sentencing judge noted the seriousness of the offending, stating that the value and nature of the drugs were significant aggravating factors in the case. It was accepted that the defendant was “a cog in the distribution” of the drugs but also held that the defendant was an important part of the distribution. It was also held that the defendant did not get substantial financial benefit from his actions. The court noted that the defendant’s motivation for the crime arose from his gambling addiction and that there was therefore an element of duress in the case.

The court nominated a headline sentence of twelve and a half years for the offence. The court considered the mitigating factors in the case and accepted the defendant’s submissions. Accordingly, the court exercised its discretion to depart from the presumptive mandatory minimum sentence of ten years and instead imposed a sentence of seven and a half years with the final three and a half years suspended.

The DPP appealed the decision on the grounds of undue leniency. It was stated that the sentence did not adequately reflect the value, weight and nature of the controlled substance and that the sentencing judge erred in principle in departing from the presumptive minimum sentence.

The DPP relied on the principles set out in DPP v. Derrick Stronge [2011] 5 JIC 2301 and stated that the sentence was a significant departure from the norm. The director also referred to The People (DPP) v. Sarsfield [2019] IECA 260, which highlighted that the lowest sentences for similar offences was seven and a half years. It was submitted that the net sentence of four years in this case was not appropriate.

Court of Appeal

Delivering judgment in the case, Ms Justice Isobel Kennedy held that the offending was very serious. The court stated that the judge had correctly identified the aggravating factors in the case. It was noted that the defendant had played an important role in the operation and that he must have been a trusted individual given the high value of the drugs. As such, the headline sentence was appropriate.

On the issue of mitigation, the court held that the sentencing judge correctly identified these factors as well. It was stated that the reduction afforded for mitigation was “very generous indeed,” but that significant deference had to be given to the views of the sentencing judge.

However, it was stated that the suspension of a further three and a half years was a substantial departure from the norm and amounted to an error in principle. It was therefore appropriate to re-sentence the defendant.

The court also considered the submission that the judge had erred by failing to apply the presumptive mandatory minimum sentence. It was held that there were exceptional and specific circumstances in the case and that it was “readily apparent” that the defendant provided valuable assistance to the gardaí. As such, it was held that the plea of guilty and the material assistance enabled the judge to properly exercise her discretion to depart from the mandatory minimum sentence.

Conclusion

In light of the above findings, the court applied a sentence of eight years with the final 18 months suspended to allow the defendant to address his gambling addiction.