Court of Appeal: Two years’ imprisonment for man in possession of €630k cannabis not unduly lenient

About this case:

• Judgment:
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Delivering the judgment of the three-judge Court, Mr Justice Mahon emphasised that the suspended element of the sentence should be viewed as punishment which serves to incentivise rehabilitation, and that this concept is “very much in the public interest”.

Background

In December 2014, Gardaí on foot of a search warrant found six green refuse sacks of cannabis – the market value of which amounted to €632,000 approximately. Mr Ronan Clohessy immediately admitted responsibility for the drugs haul, explaining that he had been requested to store the drugs in return for a payment of €2,000. The Gardaí accepted that Mr Clohessy had been acting as a warehouse man in relation to the drugs.

In November 2015, Mr Ronan Clohessy pleaded guilty to one count of possession of a controlled drug for the purpose of selling or otherwise supplying it to another contrary to s. 15A Misuse of Drugs Act 1977 and in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Misuse of Drugs Act 1977.

In April 2016 Mr Clohessy was sentenced to five years’ imprisonment, but with the final three years of that term suspended for a period of four years post release on certain conditions.

Pursuant to s. 2 of the Criminal Justice Act 1993, the Director of Public Prosecutions applied to review Mr Clohessy’s sentence on the grounds that it was unduly lenient.

Sentencing

In his carefully considered and lengthy sentencing judgment, the learned sentencing judge reviewed the evidence in relation to the offence. He noted that Mr Clohessy had co-operated with the Gardaí in their investigation, and he had no previous convictions. He also noted that Mr Clohessy was storing the drugs in return for a payment of €2,000, and that the drugs had been in his possession for approximately six or seven days.

In particular, the judge noted that Mr Clohessy “could not have been more co-operative with the Gardaí investigation” and that he had shown genuine remorse for his offending. He considered as an aggravating factor the large quantity of drugs involved, and Mr Clohessy’s knowledge that they were intended for sale or supply.

The sentencing judge decided that there were circumstances present in the case which would render a minimum sentence of ten years’ imprisonment unjust, stating: “I am of the view that there exists exceptional circumstances in this case, which would, in all the circumstances, render the statutory minimum term of ten years’ imprisonment unjust. Furthermore, I do not believe that the imposition of a lesser sentence would affect the public’s interest in preventing drug trafficking.”

Court of Appeal

The DPP maintained that the sentence imposed on Mr Clohessy was unduly lenient, and that the sentence imposed of five years, with the final three years suspended, did not property reflect the gravity of the offence. In particular, it was contended that the sentence as imposed did not sufficiently take account of the value of the drugs involved and the efforts by Mr Clohessy to securely conceal the drugs while in his custody, including moving them from his home, first to a sealed container, and finally to his parents’ address.

The DPP criticised the sentencing judge for failing to identify where on the scale of offending the appropriate sentence ought to be irrespective of a plea of guilty prior to discounting for mitigating factors including Mr Clohessy’s co-operation, his plea of guilty, his lack of any previous convictions.

Mr Justice Mahon said that the Court of Appeal had to decide if a five-year sentence was within the discretion available to the sentencing judge.

Accordingly, the Court was satisfied that “five years was a reasonable headline sentence for this offence in the particular circumstances in which it was committed” by Mr Clohessy.

Justice Mahon identified a “particularly useful comparator for this case” to be DPP v. Ryan and Rooney IECA: In that case the drugs were valued at €1.2m, the appellants were transporters, and their remuneration was between €500 and €3k. The sentences imposed in the Circuit Criminal Court were of ten years but the terms were entirely suspended for seven years. The Court of Appeal deemed both sentences unduly lenient on the basis that no immediate custody was involved, finding the appropriate sentence in each case was one of five years. For specific reasons including the fact that both appellants had enjoyed nearly eighteen months of liberty since their original sentencing, the actual sentences imposed were of three years’ imprisonment.

In Mr Clohessy’s case, the sentencing judge “explained in considerable detail his reasons for suspending what was in effect more than half the five-year term”, and Justice Mahon emphasised that “a suspended part of any sentence is nevertheless a punishment in that it remains capable of activation, in whole or in part, in the event of a further offence being committed, and in practice applications to activate suspended sentences often arise”.

Justice Mahon added that the three year suspended element of the sentence would hang over Mr Clohessy for four years post release, and therefore Mr Clohessy will “remain under the watchful eye of the justice system for up to six years, and in a manner which will incentivise rehabilitation, a concept very much in the public interest”.

Refusing the DPP’s application, Justice Mahon cited DPP v. McCormack 4 I.R. 356 in concluding that the sentencing judge acted within the limits of his discretion by suspending a significant portion of the sentence – and although the sentence imposed was especially lenient, it was not unduly lenient.