About this case:

• Citation:
  [2019] IECA 213
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice John A. Edwards

Finding that the original sentence of ten years with the final three suspended was “an error of principle” due to the very strong mitigation which could be relied upon by the appellant, Mr Justice John Edwards imposed a post mitigation sentence of six years’ imprisonment.

Background

In October 2017, the Cork West Divisional Drugs unit received confidential information about the storage of cannabis by Liam O’Connell at his home in Kinsale, Co. Cork. During a search of the property, Mr O’Connell voluntarily directed Gardaí where drugs and other items were stored. In total, the Gardaí recovered several kilograms of cannabis, along with smaller amounts of cocaine and MDMA, with a total value of €269,109. Also found during the search was a ledger which Mr O’Connell confirmed to be a tick list.

Mr O’Connell co-operated fully with the investigation, making significant admissions and accepting responsibility for all the drugs recovered.

It was accepted by the Gardaí that Mr O’Connell had only received a total of €6,700 over the course of his offending.

Mr O’Connell had no previous convictions, had not come to the adverse attention of the Gardaí outside of this offence, and entered a plea of guilty at the earliest possible opportunity.

On the first return date of Mr O’Connell before Cork Circuit Criminal Court, Mr O’Connell pleaded guilty to a single offence under section 15A of the Misuse of Drugs Act 1977.

Sentencing

At his sentencing on the 23rd of November 2018, the Court heard that 49-year-old Mr O’Connell had an admirable work history, having had long-term employment, initially as a fisherman for around twenty years, and then as a builder. His ability to work was impacted negatively by a hand injury in 2013. The Court also heard that Mr O’Connell had children and was in a committed relationship.

Furthermore, Mr O’Connell was “involved as a coxswain on the Kinsale Lifeboat for over fourteen years, and had been directly involved, at considerable personal risk, in many rescues at sea and in the saving of many lives”.

The court received “numerous impressive testimonials” about his good character and the positive contribution he made to his community over many years.

Mr O’Connell received a sentence of 10 years’ imprisonment with the last 3 years suspended

Court of Appeal

Mr O’Connell appealed against the severity of his sentence, on the grounds that the sentencing judge erred in failing to:

1. adequately consider the provisions of s. 27 of the Misuse of Drugs Act 1977 insofar as they allow a sentencing judge to depart from the presumptive minimum sentence in offences of this nature;
2. adequately consider and give due weight to the mitigating factors present and to the personal circumstances of Mr O’Connell.

Mr Justice Edwards said the trial judge’s treatment of the presumptive mandatory minimum sentencing provisions “was not in accordance with best practice”, but that in terms of the sentence actually imposed – the sentencing judge “in fact, departed from it”.

Mr Justice Edwards said there were circumstances which would have permitted the sentencing judge to depart from the presumptive mandatory minimum. However, Mr Justice Edwards said the ten year headline sentence was not inappropriate in the particular circumstances of the case, and rejected this ground of complaint.

Considering the second complaint, Mr Justice Edwards said this had more substance since Mr O’Connell “could lay claim to very strong mitigation”.

Having pleaded guilty at the first opportunity, being co-operative, having no previous convictions, a strong employment history, being of positive previous good character, having contributed to the community very significantly through his long service with the RNLI, directly contributing to the saving of many lives, and having regard to the particularly impressive testimonials on his behalf – Mr Justice Edwards said the 30% discount for mitigation “was simply not enough in his particular case, given the very strong mitigation which he could rely upon”.

Finding that this was “an error of principle”, the Court of Appeal quashed the sentence.

In resentencing Mr O’Connell, Mr Justice Edwards identified a headline sentence of eleven years – that being the pre-mitigation figure.

To reflect the higher than usual mitigation available to Mr O’Connell, the Court discounted five years leaving a net post mitigation sentence of six years’ imprisonment.

• by Seosamh Gráinséir for Irish Legal News