Killian Flood BL

About this case:

• Citation:
  [2021] IECA 86
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Aileen Donnelly

The man had claimed that the drugs had a market value worth less than €13,000 because, when sold between dealers, the drugs would have fetched €10,000.

The Court of Appeal rejected this submissions made by the defendant, relying on the decision in The People (DPP) v. Heaphy [2010] IECCA 86. As such, the defendant’s mandatory minimum sentence of 10 years’ imprisonment was upheld.

Background

In March 2018, the defendant, Mr Stephen Glynn, pleaded guilty to possession of a controlled drug for the purposes of sale or supply, contrary to the Misuse of Drugs Act 1977. The defendant had been found with 10 packages of heroin during a routine garda patrol check.

The only issue at the trial was whether the value of the drugs was greater than €13,000. The drugs weighed 245 grams and it was agreed by the garda witness that the drugs had a value of just under €10,000 between dealers. However, it was claimed that the ultimate street value of the drugs totalled €34,360. In the charge to the jury, the trial judge said that they were required to consider the street value of the drugs.

The defendant applied for a direction at the close of the prosecution case but this was rejected. The defendant was duly convicted by the jury of having more than €13,000 worth of drugs in his possession.

It was accepted by the prosecuting garda that the defendant was only handling the drugs in exchange for €200. Despite this, the defendant received the mandatory minimum sentence of 10 years’ imprisonment because it was his second conviction under the 1977 Act. The defendant appealed to the Court of Appeal.

Court of Appeal

The sole issue on appeal was whether the trial judge had erred by failing to find that the market value of the drugs did not exceed €13,000 and allowing the matter to go to the jury. The defendant submitted that he was involved in the drugs sale between dealers, where the drugs were worth €10,000. The defendant relied on section 15A of the 1977 Act describing the relevant market value as being “at any time while the drug or drugs are in the person’s possession.” The defendant submitted that these words must be given their full meaning and that there was no definition of ‘market’ in the 1977 Act. As such, it was claimed that the Oireachtas had not intended for street value to determine the value of the drugs.

The defendant acknowledged that the decision of the Court of Criminal Appeal in Heaphy was not in his favour. In that case, Mr Justice Donal O’Donnell determined that the ordinary statutory interpretation was that the street value of drugs would determine the total value for the purposes of the 1977 Act. The defendant sought to distinguish the Heaphy decision, saying that it was delivered ex tempore, that certain judgments were not opened to that court and that the prosecution evidence in the present case was supportive of his submissions.

In dismissing the appeal, Ms Justice Aileen Donnelly held that the Heaphy decision was made by a three-judge panel and was “clear and unequivocal in its terms.” The mere fact that it was an ex tempore decision did not mean that it was not authoritative. However, in deciding whether to follow the Heaphy decision, the court considered there were certain weaknesses in the analysis contained in the ex tempore decision. As such, the court said it was not a decision to which a high degree of deference was owed and that the court only had to be satisfied on balance that the decision was wrong.

The court then considered the submissions relating to the interpretation of section 15 of the 1977 Act. The court rejected the defendant’s submission that the value of the drugs had to be assessed by the dealer value. The court was satisfied that the ordinary rules of construction meant that the phrase “at any time while the drug or drugs are in the person’s possession” referred only to the time frame in which the valuation would be assessed and not the relevant market.

As such, the court held that the interpretation in Heaphy was correct and that the street value of the drugs was to be applied when assessing the offence. The court commented that this interpretation avoided the absurdity of a dealer higher up the supply chain avoiding a section 15 offence, while the end dealer would be punished.

Conclusion

The court dismissed the appeal and upheld the conviction.