Director of Public Prosecutions -v- Jervis & anor [2014] IECCA 14 (25 March 2014)

Judgment Title: Director of Public Prosecutions -v- Jervis & anor

Neutral Citation: [2014] IECCA 14

Court of Criminal Appeal Record Number: CCA Ref: 251 & 252CJA/11

Date of Delivery: 25/03/2014

Court: Court of Criminal Appeal

Composition of Court: Fennelly J., Sheehan J., White Michael J.

Judgment by: Fennelly J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
Fennelly J.	Link	Quash Sentence & Impose Sentence in lieu

COURT OF CRIMINAL APPEAL

Record Nos: 251 & 252 CJA/11

Fennelly J.
Sheehan J.
White, Michael J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT, 1993

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPELLANT

AND

KEITH JERVIS AND THERESE DOYLE

RESPONDENTS

JUDGMENT of the Court of Criminal Appeal delivered by Mr. Justice Fennelly on the 25th day of March 2014.

1. This is an application by the Director of Public Prosecutions (hereinafter “the Director”) for review of sentences imposed on the respondents by His Honour Judge Nolan in the Dublin Circuit Criminal Court on each of the respondents. Section 2 of the Criminal Justice Act, 1993 permits the Director to make such an application to this Court on the ground that a sentence imposed on a person convicted on indictment was “unduly lenient.”

2. Both respondents (who will be referred to as Mr Jervis and Ms Doyle respectively) were charged on indictment with the offence of possession, for the purpose of selling or otherwise supplying it to another, of a controlled drug, to wit, cannabis, having a market value of €13,000 or more. The offence was committed on 19th March 2010 at the residence of the respondents at 74 Rosewood Grove, Lucan, County Dublin.

3. The charge was laid as being contrary to s 15A of the Misuse of Drugs Act, 1977 and s. 27 of the Misuse of Drugs Act, 1977, as amended as well as the applicable Misuse of Drugs Regulations.

4. Both respondents pleaded guilty to the relevant charge on the indictment on 31st March 2011. On that date a probation report was requested. On 17th October 2011, evidence was given regarding the circumstances of the offence by Detective Garda Liam Aherne. Following pleas from counsel for each respondent, Judge Nolan sentenced each of them to seven years imprisonment but suspended the entire of the sentence on condition of the respondents’ being of good behaviour in their own bond in the sum of €50, but no other condition.

The facts

5. The Gardaí had received confidential information to the effect that there was a controlled drug to be found at 74 Rosewood Grove, Lucan, Dublin, the family home of the respondents. They conducted a search of the house, on foot of a judicial warrant, at approximately 5:50 in the evening of 19th day of March 2010. Both respondents were present. A garda asked if there was anything in the house that should not be there. Ms Doyle immediately said to Mr Jervis: “it’s upstairs, Keith. Just show them where it is.” Mr Jervis led the gardaí upstairs to where a quantity of cannabis was hidden. It was in what was described as “the crawl space” in an attic area off the bedroom at the top of the house. Mr Jervis had put it there. The man who delivered the drugs had brought them up there and handed the bags in to Mr Jervis. He knew it was cannabis and that it was illegal to possess it.

6. It consisted of 15 large silver bags containing approx 2 kilos each and 13 smaller bags of approximately one kilo each. There were two small cannabis plants and a lamp to facilitate their growth, unconnected with the cannabis bags. They had been grown by Mr Jervis for his own use. In total, approximately 45 kilos of cannabis was recovered. The market value of the cannabis was first given as being €549,404, but it was accepted by Garda Aherne under cross-examination that the value was probably between €320,000 and €550,000.

7. Ms Doyle said that she had been contacted by an unknown person and had been asked to store the drugs. As it happens, Mr Jervis also said that he had been approached to store some drugs, but it appeared to be accepted that, in truth, it was Ms Doyle who had been the point of contact. The cannabis had been in the house for about one week. No payment had been agreed but it appears that the respondents expected to receive some €200 to €300.

8. Ms Doyle said that she had been asked to hold a couple of packets and had been shocked (as was Mr Jervis) at the amount which arrived when the man turned up at the house. She described it as a “van load.” The respondents said that the people involved with the drugs were dangerous and that they had no option but to accept the drugs once they were delivered. There was a pipe bomb attack subsequently on the house, which belongs to Ms Doyle. The gardaí accepted that this was part of the intimidation.

9. Ms Doyle knew it was cannabis herb from the smell. She had handled approximately ten bags of the cannabis when it was delivered. The man had also delivered a mixing bowl and weighing scales. She had no phone number for the man. She only had a first name for him. She was told the drugs would be taken away after a week and that she would be paid. On at least one occasion the man had come to the house and had gone upstairs. She assumed that he was dividing up and repackaging the drugs. She had tried to contact him to know when the drugs would be collected or when she would be paid. When asked why she thought she had been approached, she answered: “Because I’m thick, I’m gullible and I’m vulnerable.” She greatly regretted what she had done.

10. Next, it is appropriate to deal with the personal circumstances of the respondents. They live at number 74 Rosewood Grove, Lucan. They have been partners for a number of years. They have two children, both boys, aged respectively seven and fourteen. The gardaí accepted that the children were well cared for. The house was maintained in a clean condition, although the respondents were in very poor financial circumstances.

11. While he was unemployed at the time of the hearing, Mr Jervis had had a good work history in the past. He had maintained a job in a firm making wooden railings or banisters from March 1998 but was made redundant in 2008. He was described as being “an excellent worker, always punctual, trustworthy, reliable and polite.” He was well motivated and had developed considerable expertise in banister installation. Mr Jervis was a heroin addict for many years. At the time of the Circuit Court hearing, he was under treatment. He had provided clean urine samples for some 16 months. He was taking Methadone and prescribed benzodiazepines. Mr Jervis had twelve previous convictions. All but one was for road traffic offences. The remaining case was for possession of drugs for supply for which he had received a sentence of six months imprisonment. Garda Aherne assessed Mr Jervis as being at a medium to low risk of reoffending. The Probation Officer thought the risk was “moderate.” Mr Jervis is the sole carer for his mother who is very ill with cancer. He was described in a medical report as her “lynchpin.” While still maintaining his relationship with Ms Doyle, he seems, from the probation report, to reside much of the time at his mother’s house.

12. The probation report in respect of Mr Jervis outlined much of the history already recounted here. He displayed a comprehensive understanding of the seriousness of his situation and his criminal behaviour in storing the drugs. He had gone along with events which were out of his control. He attributed his behaviour to his stupidity and being involved in the periphery of the drug culture. He had never been involved in such serious criminality before. He deeply regretted his behaviour. He confirmed that he had possession of two cannabis plants for his own use. Mr Jervis had been brought by a single parent. He had seen his father on only two occasions. He had completed his junior certificate, enrolled in a FAS course and had a number of jobs before finding secure employment in a firm making handrails or banisters, from which he had been made redundant in 2008.

13. The probation officer assessed Mr Jervis as being in the moderate risk category for re-offending, the main areas of concern being his history of drug misuse, his unemployed status and the influence of criminal, drug-using associates. He admitted to using cannabis and (un-prescribed) benzodiazepines, although his medical reports indicated significant progress. A medical report indicated that he had been placed on a regime of Methadone and carefully prescribed benzodiazepines, to which he had adhered. The probation officer expressed the view that, in the event of a non-custodial sentence being imposed, probation supervision would enable Mr Jervis to work on how he had become involved in such serious offending and how he could take control of his life and ensure he did not offend again. He proposed that a probation supervision order be imposed by the court in the event that a community-based sanction was being considered. Conditions would be imposed relating to attending appointments with his Probation officer and attendance at an appropriate drug treatment centre and a Probation Service training/employment officer.

14. Ms Doyle was 33 years of age at the time of the hearing. She was also a recovering heroin addict. She had been stable on Methadone for several years. She continued to undergo drug treatment. She had pursued a course on accountancy and book-keeping. There was no suggestion that Ms Doyle had been anything other than a good mother in regard to the rearing of the two boys. There had never been any question of any social-worker involvement in their upbringing. Arrangements had been made for a sister to care for them in the event of a custodial sentence being imposed.

15. From the report in respect of Ms Doyle, it is clear that it is she that was approached by an individual who was known to her as being involved in criminality to hold what she expected to be a small quantity of drugs in her home. She was taken aback by the quantity of drugs which are arrived. It was far in excess of what she had expected. She was acutely aware that having the drugs in her home was a serious matter. She believed that her weakened and emotional state made her an easy target for the person who asked her to store the drugs.

16. She was cooperative with the probation service, attending all her appointments punctually. She was assessed as being at a moderate risk of re-offending, due to her history of heroin abuse. However, she had no record of previous offending and was remorseful about her involvement in this offence. Ms Doyle gave an account of a happy family life. Her relationship with Mr Jervis was strong and mutually supportive. She had previously had a good pattern of employment in the catering and hospitality sector. She had a history of misuse of drugs. She had become a heroin addict but had not used heroin for approximately 2 years at the time of the report. The Probation Officer asked that, in the event of the court imposing a period of supervision, it should impose a condition that she attend any treatment/counselling service deemed suitable by her supervising Probation Officer.

The sentence

17. The learned trial judge accepted that neither of the respondents had anticipated that they would be minding or storing such a large quantity of drugs. He said that they were "helpless in their own eyes to alter the situation." They had made a deal with certain individuals whom they had reason to fear and whom they did fear. This he described as a "fatal and serious misjudgement." Both respondents were in need of money. They decided that this was a good way of obtaining money.

18. The learned judge said that he had to take account of the crime that they had pleaded guilty to but also that he had to take account of their particular personal circumstances and the "legislative framework which the Court has been given to deal with crimes such as this." He noted the mandatory minimum sentence of 10 years, but did not refer to the maximum sentence, namely life imprisonment. He continued:

“also within the same legislation I have a discretion to depart from that mandatory minimum sentence of 10 years where I feel there’s special and excusing circumstances. In my view these circumstances are present here. It seems that their early plea of guilty and in the case of Ms Doyle’s situation, her lack of previous convictions. I also take the view that both parties in this case co-operated as best they could in the investigation. Obviously, I suspect what the guards were trying to find out principally is who gave them the drugs. I think for obvious reasons Mr Jervis and Ms Doyle weren't able to comply with the Garda request in this regard. But, in my view they have cooperated in the investigation of the particular crime. Therefore, in my view I can depart from the mandatory minimum sentence of 10 years.”

19. The learned judge then continued:

“in coming to my sentence I have to also take into account the particular circumstances of each of the accused persons before me. Ms Doyle has no previous convictions which is an important factor. Mr Jervis has some previous convictions but I am satisfied most of them are reasonably minor and the most recent one is a good time ago. I think he has a moderate conviction record, taking these factors into account. I have also to take into account the circumstances of their family life. They seem to have formed a long-term relationship and they have two children which they both care for. It seems that they are good parents and it seems that they are as far as they could be, responsible parents and I have to take that into account. I also have to take into account the probation reports and other letters and references handed in for both parties, which I do. It seems what I can glean from the material before me, both of them I think, there is reason for optimism for both of them. I've come to the conclusion that I think both of them are on the road to rehabilitation and I take the view that probably in relation to both of them there is a good probability of a good possibility at least that they were not reoffend in the future”

20. The learned judge then referred to the facts of the case, saying that “this is a serious amount of drugs,” repeating that neither party knew that they were being asked to store such a large quantity and that the reward was to be very modest. Then he stated:

“I have listened to what has been said to me about the sentences and the sentiments expressed by the higher courts in this case, and I do accept that from McGinty [People (Director of Public Prosecutions v McGinty [2007] 1 IR 633] onwards that there is a discretion given to this Court in the appropriate cases to impose a suspended sentence. As practitioners before this Court will know, that I exercise this in the most-- only in the most unusual cases. Now, I have to ask this question, are these two parties in those very unusual circumstances?”

21. At that point, the learned judge referred to the need to take account of the "family life of the parties" and "the welfare of the children” as well is the other circumstances he had mentioned. While expressing misgivings, because of the huge quantity of drugs involved, he imposed the sentence of seven years with the entire period suspended.

The application
22. The Director makes a number of specific points in support of her contention that the sentence was unduly lenient. Generally, however, it is clear that the focus of her complaint is on the decision of the learned judge to suspend, in its entirety, the sentence of seven years imprisonment which he imposed. It does not appear, either from the written or the oral submissions of the Director, that there is any complaint about the decision of the judge to impose a sentence of seven years imprisonment rather than the presumed mandatory minimum of 10 years. In substance, it is clear that the Director contends that the learned judge was not, on the facts of the present case, justified in suspending the entirety of the sentence, that he was in error in doing so and that the sentence was, for that reason, unduly lenient.

23. The director, in addition, makes the following specific points:

1. The judge did not mention the maximum sentence for the offence, namely life imprisonment. Nor did he decide where on the spectrum between the maximum and the lowest possible sentence the appropriate sentence for this particular offence lay.

2. The judge did not make it clear what he was treating as exceptional and specific circumstances entitling him to depart from the mandatory minimum, on the one hand, and the general facts concerning the gravity of the offence and the personal circumstances of the respondents on the other.

3. The sentence was unduly lenient insofar as the learned judge determined that the early plea of guilty and the circumstances of the respondents were exceptional and specific circumstances which would make a sentence of not less than 10 years imprisonment unjust to such an extent as to justify a wholly suspended sentence.

4. The learned judge erred in placing undue weight on the fact of the respondents’ assistance. In written submissions it is said that the extent of the material assistance was in reality a function of the fact that the respondents were caught red-handed. However, at the hearing counsel resiled somewhat from this position, stating that, while no point was being made as to the limited nature of the co-operation, the judge had given no weight to other factors.

5. The judge erred in treating the family circumstances of the respondents as being “exceptional and specific.”

6. The judge placed undue emphasis on the financially strained circumstances of the respondents

7. The judge failed to distinguish between the respondents, the evidence being to the effect that the Ms Doyle had entered into the agreement to take possession of the drugs without regard to the quantity involved, to which agreement the Mr Jervis acquiesced.

8. The judge failed to place sufficient emphasis on the seriousness of the offence: in particular, the respondents agreed to store the drugs for gain in circumstances where they were not put under any pressure or duress at the time they agreed so to do.

The respondents’ case
24. Counsel for the respondents replied both to the particular points made above as well as to the more fundamental argument

25. With regard to the failure of the judge to make specific reference to the maximum sentence of life imprisonment, it was not suggested that a sentencing judge should not do so. Rather, it was submitted that, in referring to the legislative framework, the judge was clearly and necessarily referring to the section in its entirety, which comprehends both the mandatory minimum sentence of 10 years, to which he did refer, and the maximum sentence to which he must be taken as having referred by necessary implication.

26. Counsel then responded to the suggestion that undue emphasis had been placed on the extent of the material assistance provided by the respondents. It was submitted that this was not a case where the respondents could have been said to have been caught "red-handed." The respondents, by their prompt, ready and frank admissions dispensed the state, in prosecuting them, from the need to prove that they knew of the presence of the cannabis in the house. Material assistance is not limited to assistance in identifying the other offender. In the present case that would mean the man who approached Ms Doyle and who brought the drugs to the house. Clearly, the respondents did not give any assistance in identifying him. The learned judge thought that they had assisted as much as they could. Thus, it was argued, material assistance had been given.

27. The principal thrust of the argument was, however, on the basic point as to whether this was a case where there were such circumstances as could be described, as in the case law, as "wholly exceptional." It was submitted that this was such a case, having regard to the totality of all the factors. These were set out in the written submissions of Mr Jervis as follows:

a) The respondents were not aware of the value of the drugs until after they were delivered, when they were “

shocked

”: the second respondent had agreed to hold “

a bit of grass

”. The respondents had good reason to be in fear of the persons who owned the drugs (which, it is submitted did not excuse but partially explained the failure to refuse to continue to hold the drugs.)

b) No payment amount was agreed: the expectation was that it would be €200-300: the usual expectation that a higher amount/value of drugs suggested a higher gain/responsibility for the accused did not apply. It appeared that this was a “once off” incident and there were no signs of wealth.

c) The respondents made immediate admissions at the scene followed by full admissions in formal interviews.

d) The admissions were of significant material assistance in proving mens rea since the drugs were concealed in the attic and each suspect could have remained silent. In this regard, neither respondent could be said to have been “caught red-handed.”

e) The respondents co-operated fully from the outset – extending to showing the gardaí where the drugs had been concealed.

f) The respondents entered early pleas of guilty.

g) The respondents were vulnerable to exploitation and in financial difficulty: the first respondent is a heroin addict.

h) Despite this, the respondents were good parents to their children and provided a clean home for them.

i) The respondents had not come to garda attention since the offence and were regarded as being unlikely to reoffend.

j) There was evidence in respect of the first respondent that he had stabilised his addiction and had given clear urine samples for 16 months; that

k) he contributed energetically to the rehabilitation programme in which he was engaged, including by giving “quiet and respectful encouragement” to others;

l) he had an excellent work history, being described as an excellent worker: punctual, trustworthy, reliable, polite, popular and self-motivated (having concealed his heroin addiction and avoided the connections usually associated with such);

m) he was the main carer for his mother (her “lynchpin”) who was suffering from cancer.

28. It was submitted that the learned judge had given careful consideration to all of the mitigating factors and that his failure to identify the particular place on the spectrum of possible sentences where this case fell was not a ground for interfering with his decision.

29. Counsel for both parties laid particular stress on what they described as the very unusual circumstances of the case, submitting that “in their totality” they justified the learned judge in departing, as he did, from the mandatory minimum sentence imposed by the legislation.

Consideration of the Issues and Decision
30. Section 2(1) of the Criminal Justice Act, 1993 provides:

“If it appears to the Director of Public Prosecutions that a sentence imposed by a court…… on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.”

31. This Court is not, however, at large in considering such an application as the present. It does not simply place itself in the situation of the judge who has imposed the sentence. Rather it is required to “review the sentence.” The burden rests on the Director to demonstrate that the sentencing judge erred in principle. In People (Director of Public Prosecutions) v. Byrne [1995] 1 I.L.R.M. 279, the first case to come before this Court under the section, it was stated emphatically, at pp. 286 to 287, that “nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court.” (see also The People (Director of Public Prosecutions) v. Lernihan (Unreported Court of Criminal Appeal 18th April 2007, per Denham J). This has been the universal principle guiding the Court from the beginning.

The section
32. The provision commonly referred to as section 15A was inserted into the Misuse of Drugs Act, 1977 by s. 4 of the Criminal Justice Act, 1999 and has been subsequently amended. It provides:

(1) A person shall be guilty of an offence under this section where—

(a) the person has in his possession, whether lawfully or not, one or more controlled drugs for the purpose of selling or otherwise supplying the drug or drugs to another in contravention of regulations under section 5 of this Act, and

(b) at any time while the drug or drugs are in the person's possession the market value of the controlled drug or the aggregate of the market values of the controlled drugs, as the case may be, amounts to £10,000 or more.

33. The figure of £10,000 is now €13,000. The real issue is, of course, the sentence. Section 5 of the same Act of 1999 inserted new provisions in s. 27, the penalty provision of the 1977 Act. As subsequently amended, s. 27(3A) to (3G), is now, so far as is relevant to the sentence to be imposed (and omitting subsections 3H to 3N), as follows:

“(3A) Every person guilty of an offence under section 15A or 15B of this Act shall be liable, on conviction on indictment—

(a) to imprisonment for life or such shorter term as the court may determine, subject to subsections (3C) and (3D) of this section or, where subsection (3F) of this section applies, to that subsection, and

(b) at the court's discretion, to a fine of such amount as the court considers appropriate.

(3B) The court, in imposing sentence on a person for an offence under section 15A or 15B of this Act, may, in particular, have regard to whether the person has a previous conviction for a drug trafficking offence.

(3C) Where a person (other than a person under the age of 18 years) is convicted of an offence under section 15A or 15B of this Act, the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person.

(3D) (a) The purpose of this subsection is to provide that in view of the harm caused to society by drug trafficking, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under section 15A or 15B of this Act, shall specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of the offence, it would be unjust in all the circumstances to do so.

(b) Subsection (3C) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances and for that purpose the court may, subject to this subsection, have regard to any matters it considers appropriate, including—

(i) whether that person pleaded guilty to the offence and, if so—

(I) the stage at which he or she indicated the intention to plead guilty, and (II) the circumstances in which the indication was given, and

(ii) whether that person materially assisted in the investigation of the offence.

(c) The court, in considering for the purposes of paragraph (b) of this subsection whether a sentence of not less than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to—

(i) whether the person convicted of the offence concerned was previously convicted of a drug trafficking offence, and

(ii) whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence.

(3E) Subsections (3C) and (3D) of this section apply and have effect only in relation to a person convicted of a first offence under section 15A or 15B of this Act (other than a person who falls under paragraph (b) of subsection (3F) of this section), and accordingly references in those first-mentioned subsections to an offence under section 15A or 15B of this Act are to be construed as references to a first such offence.

(3F) Where a person (other than a person under the age of 18 years)—

(a) is convicted of a second or subsequent offence under section 15A or 15B of this Act, or

(b) is convicted of a first offence under one of those sections and has been convicted under the other of those sections, the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person.

(3G) The power conferred by section 23 of the Criminal Justice Act 1951 to commute or remit a punishment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised before the expiry of the minimum term specified by the court under subsection (3C) or (3F), as may be appropriate, of this section less any reduction of that term under subsection (3H) of this section.

(3H) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence imposed under subsection (3A) of this section and the minimum term specified by the court under subsection (3C) of this section shall be reduced by the amount of any remission so earned by the person.

(3I) Any powers conferred by rules made under section 2 of the Criminal Justice Act 1960 to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised during the term for which the commutation or remission of his or her punishment is prohibited by subsection (3G) of this section unless for a grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by such reason.

(3J) In imposing a sentence on a person convicted of an offence under section 15A or 15B of this Act, a court—

(a) may inquire whether at the time of the commission of the offence the person was addicted to one or more controlled drugs, and

(b) if satisfied that the person was so addicted at that time and that the addiction was a substantial factor leading to the commission of the offence, may list the sentence for review after the expiry of not less than one-half of the term specified by the court under subsection (3C) or (3F), as may be appropriate, of this section.

(3K) On reviewing a sentence listed under subsection (3J)(b) of this section, the court—

(a) may suspend the remainder of the sentence on any conditions it considers fit, and

(b) in deciding whether to exercise its powers under this subsection, may have regard to any matters it considers appropriate.

(3L) Paragraph (a) of section 13(2) of the Criminal Procedure Act 1967 shall not apply in relation to an offence under section 15A or 15B of this Act, but each of those offences shall be deemed for the purposes of paragraph (b) of section 13(2) of that Act to be an offence to which section 13 of that Act applies.

(3M) The reference in subsection (3I) of this section to section 2 of the Criminal Justice Act 1960 shall be construed to include that section as applied by section 4 of the Prisons Act 1970.

(3N) In subsections (3B) and (3D) of this section ‘drug trafficking offence’ has the meaning it has in section 3(1) of the Criminal Justice Act 1994 and in subsection (3D) of this section ‘drug trafficking’ has the meaning it has in the said section 3(1).”

34. It is not contested that this provision applied when His Honour Judge Nolan was passing sentence on the respondents. They had pleaded guilty to an offence contrary to s. 15A of the 1977 Act. The judge was obliged by law to impose a sentence “of not less than 10 years as the minimum term of imprisonment to be served by the person” unless subsection 3D applied. Paragraph (a) of that sub-section explains that the mandatory minimum sentence is required is “in view of the harm caused to society by drug trafficking.” The same provision says that sentence must be imposed, “unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of the offence, it would be unjust in all the circumstances to do so.”

35. This language is repeated in paragraph (b). The conditions for application of the provision are, therefore, that the judge passing sentence be satisfied that there are exceptional and specific circumstances present in the case. These may relate either to the offence or to the offender. The sentencing court, apart from determining whether there are exceptional and specific circumstances, may also “have regard to any matters it considers appropriate.” The court is not limited by any preordained categories of circumstances save that every such circumstance must qualify for both descriptions. It must be both exceptional and specific. In addition the court must be satisfied that, by reason of those “exceptional and specific circumstances” and not by virtue of some vague or general considerations of justice the imposition of the minimum sentence of ten years imprisonment would be unjust. The fact that the Oireachtas has specified that normally a minimum sentence precludes any judge from deciding that such a sentence is, in a general sense, unjust.

36. This Court has consistently emphasised the respect which the courts must accord to these provisions when imposing sentence.

37. Hardiman J, in delivering the judgment of this Court in People (Director of Public Prosecutions) v Heffernan, (Unreported, Court of Criminal Appeal, 10th October 2002), noted the limiting of judicial discretion and the obligation of the courts to apply the minimum sentence where applicable. He said:

“It has to be realised that the effect of the Statute is to trammel judicial discretion in a case such as this and that the Oireachtas have, for the reasons that seem to them sufficient, indicated a minimum sentence of a substantial nature in respect of these offences. They have presumably in doing so considered the fact that such sentence might be regarded as harsh in certain circumstances and on certain individuals. In this Court we have to attend to the determination of the Oireachtas as expressed in the statutory language and not permit it to be gainsaid except in circumstances which the Statute itself envisaged.”

38. The same learned judge, when delivering the judgment of the Court in People (Director of Public Prosecutions) v Botha [2004] 2 IR 375 laid emphasis on the conjunctive relationship between the words, exceptional and specific. At page 384 he said:

“But it is clearly the policy of the Oireachtas that severe deterrent sentences be imposed unless it is positively unjust by reason of exceptional and specific circumstances to do so. Moreover, it appears clear from the wording of the statutory provision that unenumerated circumstances relied upon as putting the case into a category where it would be unjust to impose the minimum sentence must be both exceptional and specific; the conjunctive form of words leaves no other conclusion open.”

In so holding, the Court expressly rejected a submission to the effect that it sufficed if a circumstance was either exceptional or specific (see page 381 of the report).

39. Even where a judge finds that there are exceptional and specific circumstances in a case, he is not permitted to ignore the presumptive minimum ten-year sentence. In a passage cited in many subsequent cases, Murphy J in The People (Director of Public Prosecutions) v. Renald (Unreported, Court of Criminal Appeal, 23rd November, 2001) said, in delivering the judgment of the Court:

"Even where exceptional circumstances exist which would render the statutory minimum term of imprisonment unjust, there is no question of the minimum sentence being ignored. Perhaps the most important single factor in determining an appropriate sentence is the ascertainment of the gravity of the offence as determined by the Oireachtas. Frequently an indication as to the seriousness of the offence may be obtained from the maximum penalty imposed for its commission. This is particularly true in the case of modern legislation. What is even more instructive is legislation which, as in the present case, fixes a mandatory minimum sentence. Even though that sentence may not be applicable in a particular case, the very existence of a lengthy mandatory minimum sentence is an important guide to the courts in determining the gravity of the offence and the appropriate sentence for it to impose for its commission. That is not to say that the minimum sentence is necessarily the starting point for determining the appropriate sentence. To do so would be to ignore the other material provision, that is to say, the maximum sentence. It would be wrong to assume that the offence of importing controlled drugs in excess of the prescribed amount or value will attract only the mandatory minimum sentence, long though it may be."

40. Examples of the reiteration of these principles are to be found in the judgments in The People (Director of Public Prosecutions) v Galligan (Unreported Court of Criminal Appeal 23rd July 2003, per Fennelly J and The People (Director of Public Prosecutions) v. Lernihan (Unreported Court of Criminal Appeal 18th April 2007, per Denham J).

41. In similar vein, Keane C.J. stated, when delivering the judgment in The People (Director of Public Prosecutions) v. Henry (Unreported, Court of Criminal Appeal, 15th May, 2002):

"If the court is satisfied that factors exist which would render the mandatory minimum sentence unjust, then the court is not required to impose it but the existence of such matters or circumstances does not reduce the inherent seriousness of the offence. It remains the task of the court to impose a sentence which is appropriate having regard to the relevant circumstances and the fundamental gravity of the offence as determined by the Oireachtas and reflected in the sentence which it has prescribed. It remains the case that even if a court properly decides that it would be unjust to impose the mandatory minimum sentence, the sentence it imposes must nonetheless reflect the gravity of the offence committed by the respondent having regard to the very draconian penalties which the Oireachtas has seen fit to impose reflecting its view of the seriousness of the offence."

42. What then are to be regarded as exceptional and specific circumstances? Paragraph (b) of sub-section 3D section permits a court to treat two specific matters as qualifying, namely a plea of guilty and the giving of material assistance in the investigation of the offence. The qualification is not automatic. It remains a matter for the court to decide whether, in either case, the plea of guilty or the material assistance is, having regard to all the circumstances of the case both exceptional and specific. That is why, in the case of the plea of guilty, the court must consider both “the stage at which [the accused] indicated the intention to plead guilty and “the circumstances in which the indication was given.” The different situations which arise are well known. The value of a plea is diminished most obviously where the guilt of the accused is obvious, because he has been caught red-handed, or when he pleads guilty at the last moment before trial. It must be doubtful whether a plea given in either of those circumstances could be regarded as exceptional and specific. In The People (Director of Public Prosecutions) v Ducque (Unreported Court of Criminal Appeal, 15th July 2005), Geoghegan J expressed the view that “a plea of guilty without more and especially a late plea could not normally be taken into account because it would rarely if ever constitute “exceptional and specific circumstances.””

43. By the same reasoning, a person can scarcely be held to have materially assisted an investigation, where he has been caught in flagrante delicto and seeks to rely on his admission of the obvious as a qualifying circumstance. Unless there were other unusual facts, it clearly would not be exceptional and specific for the obvious reason that it would not be unjust to decline to treat admissions made in such a context as a mitigating factor.

44. It has been accepted, however, that the material assistance contemplated by subsection 3D(b)(ii) does not necessarily have to be in the investigation of the involvement of others in the offence. (see People (Director of Public Prosecutions v Botha, already cited at page 382).

45. Before addressing the specific arguments of the Director, general remarks are appropriate in relation to the formulation of sentence in a criminal case with specific reference to cases involving ss. 15A and 27(3) of the Misuse of Drugs Act 1977, as inserted by ss 4 and 5 of the Criminal Justice Act, 1999, (and subsequently amended).

46. Firstly, it is appropriate to recall the dictum of Egan J in The People (DPP) v M [1994] 3 IR 306, at page 315:

“It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum sentence applicable. One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an appropriate reduction made.”

47. This is a well known principle, repeated in many later cases. Denham J, as she then was, applied the principle to the context of s. 15A cases as follows:

“the Court should first determine what the appropriate notional sentence is, bearing in mind the maximum sentence of life imprisonment, then consider the aggravating and mitigating circumstances, and then apply the mitigating factors.”

48. The result of these statements is that a judge faced with the task of imposing a sentence for a s. 15A offence must firstly have regard to the maximum sentence. He should then decide, having regard to the seriousness of the offence and any aggravating factors, what sentence it should attract. He should then decide if Section 27(3D) applies by considering the exceptional and specific circumstances relating to the offence , or the person convicted of the offence, and if it would be unjust in all the circumstances to impose the statutory minimum sentence of 10 years.

49. If the judge decides to apply Section 27(3D) of the Act, he is not confined to the exceptional and specific circumstances in mitigation but can consider general mitigating factors concerning the appropriate sentence for the offence, always having regard to the existence of a mandatory minimum sentence as an important guide.

50. As has already been noted, the sentencing court may “have regard to any matters it considers appropriate.” (see s. 27(3D)(b)) The Oireachtas did not intend to preclude the sentencing court from considering ordinary matters other than exceptional circumstances and giving them their due weight.

51. The judge will consider general issues concerning the appropriate sentence for the offence as well as exceptional and specific circumstances.

52. It is, of course, most relevant to the present case to consider whether and, if so, in what circumstances, a judge may impose an entirely suspended sentence in a case in which ss. 15A and 27 prima facie call for the imposition of a 10-year minimum sentence. Two cases in particular have been cited to the Court. In People (Director of Public Prosecutions) v Alexiou [2003] 3 I.R. 513, the Circuit Court judge had imposed a sentence of four years imprisonment entirely suspended. The offender was a South African national who had been persuaded to fly to Ireland with a large quantity of cannabis. Murray J, delivering the judgment of the Court, said that two of the “exceptional and specific circumstances” mentioned in the section had been taken into account by the trial judge “namely, the extensive co-operation which the accused extended to the gardaí and the fact that he freely admitted full details of the offences at all times, even though it could be said that he had little option but to admit the offence itself."(see page 520) No other exceptional or specific circumstance was mentioned. The judgment considered the general circumstances of the respondent such as his poverty and low level of intelligence. Having referred to the gravity of the offence, the learned judge said that the legislation did not “ exclude wholly exceptional and specific circumstances where a suspended sentence may be considered appropriate in order to do justice in the particular case."

53. The other case was The People (Director of Public Prosecutions) v McGinty [2007] 1 IR 633, where an entirely suspended sentence of five years imprisonment had been imposed on condition of the respondent completing a drug rehabilitation course. Murray J, in delivering the judgment of the Court, at page 637, rejected the submission which had been made on behalf of the Director that a suspended sentence must always, and in every circumstance, be considered wrong in principle. He addressed the question of the imposition of a wholly suspended sentence in the following terms:

“It cannot be said that there could never be circumstances in which, having regard to the interests of society as a whole, the facts of the particular case and the circumstances of the accused, where a suspended sentence would be appropriate. Undoubtedly a trial judge sentencing a convicted person for an offence such as that in question here is constrained by the considerations already referred to above to consider that a term of imprisonment is normally what should be imposed. However, where there are special reasons of a substantial nature and wholly exceptional circumstances, it may be that the imposition of a suspended sentence is correct and appropriate in the interest of justice. This is a combination of factors which could only arise in a relatively rare number of cases.”

54. At a later point, he said:

“The totality of factors which the judge took into account could reasonably be considered as wholly exceptional circumstances and special reasons of a substantial nature which indicated that the accused was exceptionally "different in degree and kind" from other cases and which led him to make the decision on sentencing which he did.”

55. How are all the principles which emerge from all these judgments to be applied to the present case? It is possible to dispose, firstly, of a number of the points, set out in numbered paragraphs in paragraph 23 above, from the submissions made on behalf of the Director.

56. Firstly, it is correct that the judge did not mention the maximum sentence (Point No 1). It would have been preferable if he had done so. However, the Court is satisfied that his reference to the "legislative framework" necessarily and clearly implied a reference to that provision.

57. Secondly, the court is satisfied that, in the light of the authorities, the judge was entitled to treat the cooperation of the respondents with the Garda investigation as amounting to material assistance (Point No 4). It is clear from Director of Public Prosecutions v. Botha that assistance by persons caught in possession of drugs or, as in this case, having drugs on their premises is capable of being material even if it does not assist in the inculpation of others. The judge was entitled to treat as an exceptional and specific circumstance the fact that both of the respondents readily, immediately and without qualification assisted the gardaí in discovering the location of the drugs. It was of particular importance that the drugs were concealed in the attic space of the house. Without the admissions made by the respondents, the prosecution could not automatically have proved possession. The court notes that counsel for the Director accepted this point at the hearing.

58. Thirdly, the Court is satisfied that the judge did not in fact treat the family circumstances of the respondents as amounting to an exceptional and specific circumstance (Point No 5).

59. Fourthly, the Court is satisfied that the judge did not place any undue emphasis on the financially straitened circumstances of the respondents. He did not mention this element as an exceptional and specific circumstance (Point No 5).

60. Fifthly, the court is satisfied that the judge did not fail to place sufficient emphasis on the seriousness of the offence. He referred to the “serious amount of drugs.” This issue is to some extent related to the remaining issue regarding the suspension of the sentence. However, it is clear that the Director does not complain about the length of the seven-year sentence but rather about the fact that it was entirely suspended.

61. It remains to consider, therefore, the basic question as to whether the judge imposed a sentence which was unduly lenient insofar as he suspended the entirety of the sentence of seven years imprisonment.

62. This requires the court to return to the way in which the judge structured the sentence. The Director complains (Point No 2) that the learned judge did not sufficiently distinguish between exceptional and specific circumstances and general facts concerning the gravity of the offence and the personal circumstances of the respondents. In making that submission, the Director is treating a number of remarks in the latter part of the sentencing statements as amounting to findings that there were exceptional and specific circumstances. That is not, however, how the judge approached the matter. In the first passage quoted at paragraph 18 above, the judge considered that it was within his discretion to depart from the mandatory minimum sentence. He used the expression "special and excusing circumstances," but clearly, in a spoken judgement, he intended to refer to the statutory requirement that there be exceptional and specific circumstances. He identified two. They were, firstly, "there are the pleas and, in Ms Doyle’s situation, her lack of previous convictions.” Secondly he referred to the fact that both respondents had "cooperated as best they could in the investigation.” He said that in his view they had "cooperated in the investigation of the particular crime.” Therefore, he concluded, in express terms that he could "depart from the mandatory minimum sentence of 10 years.” In the remainder of his remarks, which have been quoted substantially above, he referred to the general circumstances of the respondents and some of the circumstances of the crime. He did not identify any of those as exceptional and specific circumstances.

63. Towards the end of his sentencing remarks the judge referred to the McGinty case and said that discretion had been given to the court "in the appropriate cases to impose a suspended sentence." He said that he would do this only “only in the most unusual cases.” He asked himself whether the respondents were in "those very unusual circumstances." It was at that point that he made reference to “the family life of the parties” and “the welfare of the children” and what he referred to, without more specification, as "the particular circumstances as I've outlined and as I have found them."

64. When deciding to take the “wholly exceptional” step of suspending in its entirety the sentence of seven years at which he had arrived, there was a requirement on the learned judge to explain his reasons. While the learned judge did not spell it out, he must be taken as having referred to and intending to adopt the test laid down by this Court in McGinty. That was that “where there are special reasons of a substantial nature and wholly exceptional circumstances, it may be that the imposition of a suspended sentence is correct and appropriate in the interest of justice.” This goes well beyond the ordinary requirement that there be exceptional and specific circumstances, as ordinarily understood. There must, in addition be “special reasons of a substantial nature” which must be, not only exceptional, but “wholly exceptional” something quite out of the ordinary. A totality of factors where the court combines all the mitigating factors is not sufficient.

65. The Court is satisfied that the family life of a person being sentenced and the welfare of such a person’s children are capable of amounting to exceptional and specific circumstances for the purposes of s. 27(3D) and, that they are capable of amounting to “special reasons of a substantial nature and wholly exceptional circumstances,” capable of justifying the suspension of a sentence in its entirety. That will depend on a consideration of the circumstances of the case. In the present case, the judge made very brief reference to the family life of the parties and the welfare of the children. He gave no reasons why those considerations should lead to a complete suspension of the sentence.

66. He suspended the sentences in their entirety and imposed only a token requirement to keep the peace on the bond of each of the respondents in the sum of €50. He said that he had considered supervision but thought that the respondents were “old enough now to make their own way and if they get into difficulties it’s on their own heads at this stage.”

67. It is, of course, the case that the personal circumstances of the individual and the effects of a sentence on his family are relevant considerations in sentencing. In Her judgment in Director of Public Prosecutions v. M [1994] 3 I.R. 306, Denham J, as she then was, said:

“However, sentences must also be proportionate to the personal circumstances of the appellant. The essence of the discretionary nature of sentencing is that the personal situation of the appellant must be taken into consideration by the court.”

68. The effect of the breaking up of a family unit by separating children from one or both of their parents is a highly material consideration in sentencing. This proposition is so obvious that it only has to be stated for it to be accepted. There are, however, some crimes so serious that this necessary consequence follows from the commission of the crime itself. Everything will depend on the circumstances of the case.

69. In the present case, the learned judge did not address at all the implications of the sentence for the children or for either or both of their parents. He did not consider whether either one of the parents might be imprisoned, leaving the other free to care for the children. The Court is faced with an unusual and difficult decision. It can only assume that the learned judge intend to treat the case as one falling within the wholly exceptional category identified in McGinty. That can only be because the judge considered that the presumed break-up of the family unit would unjustly affect the children of the respondents. Counsel for Ms Doyle had invited the court to bear in mind that the imposition of sentence had the potential to cause problems for the two young boys if they were to be deprived of their parents for any significant period. Even with these assumptions, the Court considers the sentence to be lenient. It would be unduly lenient if there were not very good reason for it. In the view of the Court, however, the learned judge fell into serious error in failing to take proper account of the very careful probation reports, both of which recommended probation supervision. These reports were before the court. The learned judge said that he had considered them. Both of the reports were to the effect that each of the respondents was at moderate risk of reoffending. It is notable that counsel for Mr Jervis had specifically proposed that his client would undergo a regime of support and that, even after sentence had been imposed, he repeated the offer to accept probation requirements. Both counsel were at pains to show that their clients were free of drugs.

70. The Court, not without some hesitation, has come to the conclusion that the sentence was not unduly lenient merely because the sentence of seven years imprisonment was wholly suspended. Nonetheless, it has decided that it was unduly lenient and in error insofar as the learned judge decided wholly to suspend the sentence without imposing any conditions. Bearing in mind the very serious offences to which they had pleaded guilty and the history of drug addiction of each respondent and even bearing in mind that the effective reason for suspension of the sentences was the welfare of the children, it seems clear that the court should have imposed appropriate supervision terms. The Court will hear the parties as to the appropriate conditions now to be imposed. In doing so, it will accept evidence and submissions as to the behaviour since the date of imposition of the original sentence.

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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Director of Public Prosecutions -v- Jervis & anor [2014] IECCA 14 (25 March 2014) URL: http://www.bailii.org/ie/cases/IECCA/2014/C14.html Cite as: [2014] IECCA 14

Irish Court of Criminal Appeal