Court of Appeal: Man convicted of offences related to €4.1m drugs seizure has sentence increased to 10 years

About this case:

• Citation:
  [2019] IECA 260
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Quashing the sentence of seven years imposed by the Dublin Circuit Criminal Court, Mr Justice George Birmingham agreed with the Director of Public Prosecutions that the sentence was unduly lenient as the mitigating factors in the man’s case did not justify departing from the mandatory minimum sentence.

Background

On 17 July 2017, gardaí had confidential information suggesting that there was an operation in progress involving a large quantity of drugs in the Ballyfermot area, and that there was an HGV parked outside the house where the activity was said to have been taking place.

Members of An Garda Síochána went to Ballyfermot Drive where they engaged in surveillance of the area. The gardaí found a large curtain-sided HGV parked outside a house with a garage. Stephen Sarsfield was observed moving the HGV, and two men were seen removing flat-pack boxes from the HGV and bringing them into the garage.

The gardaí obtained a search warrant in respect of the garage, and when they entered it was apparent that it was the centre of a large-scale drugs distribution unit: in the property there was 188 kilos of cannabis, with an estimated value of €3.76 million; 2.9 kilos of diamorphine, with an estimated value of €410,312; and three stun guns, which were not in good condition. Other items seized were weighing scales, a money counting machine, and two plastic bag sealing machines.

Mr Sarsfield was arrested and detained and in the course of his detention was interviewed on six occasions. For the most part, Mr Sarsfield exercised his right to silence, though he did refer to the fact that he had a gambling debt of €60,000 and was addicted to cocaine.

Gardaí confirmed that he was “a small cog, but undoubtedly important cog, in the bigger machine”.

Sentencing

In Dublin Circuit Criminal Court, Mr Sarsfield pleaded guilty to an offence contrary to s. 15A of the Misuse of Drugs Act 1977 (as amended).

The Court heard that Mr Sarsfield had no relevant previous convictions, with only minor convictions for road traffic and public order offences. The Court also heard that Mr Sarsfield had mental and physical vulnerabilities which had been taken advantage of at the time of the offences, and positive testimonials were submitted regarding Mr Sarsfield’s efforts to deal with his addictions and to help others on their own recovery path.

The sentencing judge identified a headline sentence of 12 years; however, he felt that there were factors present to permit him to impose a sentence less than the mandatory presumptive minimum of 10 years.

The judge then proceeded to impose the sentence of seven years’ imprisonment.

Undue Leniency Application

In the Court of Appeal, the Director of Public Prosecutions brought an application seeking to review the sentence on grounds of undue leniency.

The Court considered detailed reports and surveys of cases involving the Misuse of Drugs Act 1977 which dealt with by the Court of Appeal and Court of Criminal Appeal, and the sentences imposed in those cases. One report referred to sentence appeals involving drugs valued in excess of €1 million – the average sentence was nine years’ imprisonment and the average suspended sentence was two years and three months; therefore, the average time actually served was six years and nine months. Consequently, Mr Sarsfield argued that his sentence was “on the nose”, and that the appeal was “unstatable on the basis that the sentence imposed did not represent any departure from the norm, still less, the substantial departure that would be required to alter the sentence on grounds of undue leniency”.

Mr Justice Birmingham said a degree of caution was required here, because the level of involvement could vary greatly in each case – i.e. the person before the Court may have been very actively involved, but may not have been the beneficial owner of the drugs or the person who would make the ultimate profit.

Considering the non-exhaustive list of factors in determining whether to deviate from the presumptive minimum (as set out in section 27(3D) of the Misuse of Drugs Act 1977 (as amended)), Mr Justice Birmingham said there was a particular emphasis placed on assistance provided by the offender to the Gardaí in combating drug trafficking. He said that beyond Mr Sarsfield’s early plea (provided in the context of being caught red-handed), not much was put forward by way of material assistance.

Notwithstanding the substantial mitigation put before the judge, Mr Justice Birmingham noted that the amount of drugs being dealt with in this case – €4.1 million – was “more than 300 times the statutory threshold for the imposition of the statutory presumptive minimum sentence” (i.e. €13,000).

Having regard to “the seriousness of the offending in issue, and the enormous scale of the activity interrupted by gardaí”, Mr Justice Birmingham said, “the sentence imposed represented a substantial departure from what was to be expected and was, indeed, unduly lenient”.

Finding the appropriate pre-mitigation sentence to be one of 15 years, Mr Justice Birmingham said that giving full allowance for the factors in Mr Sarsfield’s favour did not justify a sentence below the mandatory presumptive minimum.

Quashing the sentence imposed in Dublin Circuit Criminal Court, the Court of Appeal substituted the sentence for one of 10 years’ imprisonment.