D.P.P.v Edward Anthony Farrell

Factual and Procedural Background

This opinion concerns an appeal by the Applicant seeking to set aside a sentence imposed on the Respondent under s. 2 of the Criminal Justice Act 1993 on the basis that it was unduly lenient. The Respondent was convicted of an offence involving the importation of a significant quantity of Diamorphine (heroin) found concealed in a vehicle stopped by Customs Officers. The sentencing judge imposed a sentence of eight years imprisonment with six years suspended. The Court of Criminal Appeal had previously reviewed the sentencing hearing transcript, which was incomplete and garbled, but relied on a report from the sentencing judge to understand the proceedings and considerations. The Applicant challenged the sentence as being unduly lenient, prompting this appeal.

Legal Issues Presented

1. Whether the learned sentencing judge erred in principle by failing properly to apply established sentencing principles regarding the assessment of the appropriate range and gravity of the offence before considering mitigating factors.
2. Whether the sentence imposed was unduly lenient given the gravity of the offence and the statutory framework, including the mandatory minimum sentences under the Misuse of Drugs Act 1977 (as amended).
3. Whether the suspension of a significant portion of the custodial sentence was appropriate in principle for this type of offence.
4. Whether exceptional and specific circumstances existed to justify a sentence below the statutory minimum.
5. Whether it would be just and humane to re-impose the suspended portion of the sentence after the Respondent had served the custodial portion and been at liberty for almost two years.

Arguments of the Parties

Applicant's Arguments

• The sentence imposed by the learned sentencing judge was unduly lenient and failed to properly apply the principles set out in relevant case law.
• The appropriate notional sentence for the offence, given the quantity and value of drugs involved, should have been approximately twelve years imprisonment without suspension.
• The suspension of six years was an error in principle and constituted a departure from sentencing norms for such serious offences.
• The Respondent’s mitigating factors were insufficient to justify a sentence below the statutory minimum.

Respondent's Arguments

• The Respondent acted under duress, fearing for his own safety and that of his family, which should be considered an exceptional and specific mitigating circumstance.
• The Respondent pleaded guilty at an early stage, which should be given significant weight in mitigation.
• The Respondent was a heroin addict at the time of the offence and not motivated by financial gain.
• The Respondent expressed genuine remorse and had cooperated with the authorities to the extent possible.
• Re-imposing the suspended portion of the sentence after the Respondent had been released and at liberty for a substantial period would be unjust and inhumane.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by reaffirming the established sentencing principle that a sentencing judge must first identify the appropriate range of penalties for the offence and then place the particular offence within that range based on its gravity. Only thereafter may mitigating factors be considered to adjust the sentence. The Court found that the learned sentencing judge failed to properly identify the notional sentence for the offence before applying mitigating factors, thereby committing an error in principle.

The offence involved a very large quantity of heroin with a market value exceeding €1.6 million, placing it in the upper mid-range of seriousness. The Court concluded that an appropriate notional sentence would be twelve years imprisonment.

The Court accepted the mitigating factors identified by the sentencing judge, including the Respondent’s heroin addiction, early guilty plea, genuine remorse, cooperation with An Garda Síochána, and personal circumstances such as family support and prior rehabilitation. However, the Court noted that the Respondent was not a mere courier but a transporter, a more serious role in the drug trafficking hierarchy.

The Court distinguished between cooperation and “material assistance” as defined under the Misuse of Drugs Act, finding no evidence that the Respondent provided material assistance warranting further mitigation.

While the Court agreed that the eight-year sentence imposed was very lenient, it held that it was not unduly lenient in the legal sense because of the mitigating factors. However, the suspension of six years of that sentence was a departure from principle and constituted an error.

Importantly, the Court considered the unique procedural and factual circumstances, including the Respondent’s release after serving the custodial portion and the delay caused by incomplete transcripts and procedural issues. The Court recognized the injustice and disruption that would be caused by re-imposing the suspended portion of the sentence after the Respondent had been at liberty for nearly two years.

Accordingly, despite the error in suspending part of the sentence, the Court exercised its discretion to allow the original sentence to stand, balancing legal correctness with humanitarian considerations.

Holding and Implications

The Court ALLOWED the application of the Applicant to the extent of finding that the suspension of six years of the sentence was an error in principle and that the sentence imposed was unduly lenient in that respect.

However, due to the exceptional procedural circumstances, including the Respondent having served the custodial part and been at liberty for almost two years, the Court declined to order the re-imposition of the suspended portion of the sentence. Instead, it permitted the original sentence to stand as imposed.

The direct effect is that the Respondent will not be required to return to custody to serve the suspended portion of the sentence. The Court’s decision does not establish new precedent but reflects a careful balancing of sentencing principles with fairness and humanity in exceptional circumstances.