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  1. DPP -v- Gilligan

Case number: SC2

 

Case title: D.P.P. -v- Gilligan.

 

Date: July 10th, 2006.

 

Neutral Citation: [2006] IESC 42. 

 

Judgment of the majority: Denham J. (Mc Guinness J., Geoghegan J.). 

 

Judgment of the minority: Fennelly J. (Macken J. concurring).

 

Composition of the Court: Denham J., Mc Guinness J., Geoghegan J., Fennelly J., Macken J. 

 

Keywords: Section 29 of the Courts of Justice Act 1924 – Sentence – Jurisdiction to appeal sentence – Appeal against sentence and conviction – Cannabis – Parity between offences – Leader of gang – Profit – Financial gain – Lack of remorse.

 

Summary: The appellant was convicted by the Special Criminal Court of drug offences involving importation into the State and possession for the purpose of sale or supply of cannabis resin. In respect of six counts of possession for the purpose of sale or supply he was sentenced to a term of twenty eight years imprisonment for each count, the sentences to run concurrently. In respect of the five counts of unlawful importation of a controlled drug, he was sentenced to a term of twelve years imprisonment, the terms to run concurrently.

 

On appeal, the Court of Criminal Appeal reduced the sentences in respect of the convictions of possession of a controlled drug for the purpose of selling or otherwise supplying to another from twenty eight years imprisonment to twenty years, and upheld the sentences of twelve years imprisonment in relation to the convictions for unlawful importation.

 

Under s. 29 of the Courts of Justice Act 1924, the Court of Criminal Appeal certified certain questions relating to the appellant’s convictions as involving points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court on those grounds.

 

The Supreme Court dismissed the appellant’s appeal as it related to his convictions. The question then arose as to whether the Court had jurisdiction to consider an appeal in relation to the appellant’s sentence.

 

The majority held that the Supreme Court can consider an appeal in relation to sentence where sentencing was at issue before the Court of Criminal Appeal. The certificate granted by the Court of Criminal Appeal enables the appeal to the Supreme Court. The appeal to the Supreme Court is limited by the nature of the appeal to the Court of Criminal Appeal. If an appeal to the Court of Criminal Appeal from a trial court was limited to sentence then so too is an appeal to the Supreme Court. If an appeal to the Court of Criminal Appeal was on issues of conviction and sentence then the Supreme Court cannot bind itself to deal with only one or the other simply because the certificate is so limited. The certificate is the condition precedent to the appeal. Once it is granted the Supreme Court is at large on the appeal to the extent of the appeal to the Court of Criminal Appeal. The Supreme Court accordingly had jurisdiction to entertain an appeal in relation to the sentence imposed on the appellant.

 

The minority held that an appeal may not be granted against either conviction or sentence based on a certificate relating to a determination of the other. As the certificate here related to conviction only, the Supreme Court had no jurisdiction to consider an appeal against sentence.

 

It was argued on behalf of the appellant that the sentences imposed were manifestly disproportionate and that the Court of Criminal Appeal had failed to have regard to parity in sentencing between the offences for sale or supply, and importation, and that it had failed to have regard to the fact that the drug in question was less harmful.

 

The Court referred to the fact that it had reinstated the trial judge’s finding that the appellant was the leader of the gang involved in the importation, sale and supply of the drusg. This placed him in a more serious position for sentencing and distinguished him from other members of the gang.

 

The Court also endorsed the Court of Criminal Appeal’s view that a court could not, when determining sentence, have regard to evidence of other actions which have not been the subject of any conviction or where an accused has not consented to the charge in respect of which he has been convicted being treated as a sample charge.

 

The Court observed that the Oireachtas had made a clear policy decision not to place cannabis in a less serious category than other drugs.

 

The Court also noted that the Oireachtas had provided for different maximum penalties for the relevant offences, and that there was accordingly no parity in law between them. A sentencing court is not required to apply parity between the sentencing of the two distinct offences.

 

The Court also referred to aggravating factors, namely the fact that the appellant was the prime mover; the fact that it was a large commercial operation; the fact that the appellant made significant profits; the appellant was not himself a drug addict seeking to feed a habit; the appellant had previous convictions; and there were no signs of remorse on the part of the appellant.

 

The Court expressed the view that the sentence of twenty years was at the high end of the appropriate sentence, but that it was not so high as to be an error in principle. These were serious offences, involving a significant amount of illegal drugs, in a pattern, where the applicant was not in the business of possession for the sale or supply of illegal drugs to feed a habit, but rather for commercial gain, and he gained significantly.

 

The Court would not interfere with the sentences of 20 years imprisonment imposed by the Court of Criminal Appeal.

 

http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/c77fa1c5e31245b9802571a7002e4eaa?OpenDocument