Neutral Citation Number:  IECCC 2
THE HIGH COURT
CENTRAL CRIMINAL COURT
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Judgment of Mr. Justice Garrett Sheehan delivered on the 11th June 2012.
[1.1] On the 12th March 2012, the accused pleaded guilty to two counts on the indictment. The first count was that on the 7th December 2008, he impeded the apprehension or prosecution of Conor Duffy in respect of the unlawful killing of Aidan O'Kane contrary to s.7 (2) and (4) of the Criminal Law Act 1997. The second count was that, between the 7th December 2008 and the 11th December 2008, the accused had possession of cannabis resin and cocaine for the purpose of selling or otherwise supplying to another contrary to s. 15 of the Misuse of Drugs Act 1977 as amended.
 Factual background
[2.1] On the 7th December 2008, Aidan O'Kane was shot dead in a laneway in East Wall, Dublin 3. The prime suspect for that killing was Conor Duffy who was ultimately tried and convicted of the manslaughter of Aidan O'Kane. In the course of the investigation into the death of Aidan O'Kane, the gardaí discovered that Conor Duffy had been supplied with a change of clothing and runners and that the clothing he had been wearing at the time of the killing had been burned at a disused factory premises. Gardai found the burnt remains of the clothing and also a bag containing a white Tupperware box in the cavity of the wall. The Tupperware box contained an amount of cannabis and cocaine. An analysis of the materials determined that the cannabis weighed 758 grams and had a value of approximately €5,311. The cocaine weighed 53 grams and had a value of approximately €3,759 giving a total approximate value of €9,070. A further bag containing a revolver was also found within the wall cavity which was subsequently confirmed to be the weapon that had been used in the killing of Aidan O'Kane.
 Facts arising from the sentencing hearing
[3.1] The accused is twenty-one years of age. He became involved in drugs when he left school at the age of fifteen. He was eighteen years of age at the time of the commission of the offences. The accused has five previous convictions which are as follows: - a conviction for an offence pursuant to s.15 of the Misuse of Drugs Act 1977, as amended, for which the accused received a suspended sentence and an offence pursuant to s.3 of the Misuse of Drugs Act 1977, as amended, was also taken into consideration on that date, a conviction for failing to appear on a remand date and offences pursuant to s.11 and s.9 (1) of the Firearms and Offensive Weapons Act. None of these offences resulted in the accused serving a sentence of imprisonment.
[3.2] The Detective Garda in charge of the prosecution agreed with the suggestion that the accused was unfortunate to have found himself in the wrong place at the wrong time and confirmed that the accused, when asked by gardai about his involvement, had said that he was helping “a friend in need” and explained that he and Conor Duffy had been in school together fifteen years ago. The Detective Garda also informed the Court that the accused had co-operated with the gardai.
[3.3] The Court was told about the personal circumstances of the accused. He is unemployed at the present time. On leaving school he worked with a tree surgeon in Co. Dublin and thereafter with a landscape gardener in Co. Cork. When this work ceased he became involved in a FAS course and qualified as a volleyball instructor and subsequently as a swimming instructor. Counsel told the Court that the accused now has a girlfriend which has had a positive influence on his life. Counsel for the accused also informed the Court that the accused accepts that his involvement with drugs must cease and emphasised the accused’s genuine remorse for these offences. The Court was referred to the sentence which was structured by this Court in respect of Conor Duffy in that the appropriate sentence for that crime was twelve years which was mitigated to one of seven years in the circumstances.
[3.4] Counsel for the prosecution set out the view of the Director of Public Prosecutions concerning where this particular offending behaviour lies. The view of the Director of Public Prosecutions is that in relation to the first count, the physical destruction of evidence in relation to the investigation of an unlawful killing of another individual, this offending falls at the middle to upper level. Counsel for the prosecution informed the Court that the Director of Public Prosecutions accepted that there are mitigating factors, including the age of the accused, the lack of premeditation and his co operation with the gardaí. In relation to the drugs offence, the value of the drugs was highlighted and his other offending in relation to drugs might be seen as an aggravating factor but once again counsel for the prosecution outlined that the Director of Public Prosecutions accepted that there were mitigating factors including the age of the accused and his co operation with the gardaí.
 Constructing the appropriate sentence
[4.1] In structuring an appropriate sentence for this accused the Court is mindful of the penalties set out with respect to both offences by the legislature. This Court has had regard to the circumstances of both offences and also to the circumstances of the accused in accordance with the Director of Public Prosecutions v. McCormack  4 I.R. 356 in which the Court of Criminal Appeal stated at p. 359 that: - “ Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of possible penalties is dependent upon those two factors.”
[4.2] With respect to the first offence, s.7 (2) of the Criminal Law Act 1997 provides that: - “Where a person has committed an arrestable offence, any other person who, knowing or believing him or her to be guilty of the offence or of some other arrestable offence, does without reasonable excuse any act, whether in or outside the State, with intent to impede his or her apprehension or prosecution shall be guilty of an offence.” Section 7(4) establishes the penalty for the offence for which the accused has pleaded guilty and states the following: - “A person committing an offence under subsection (2) with intent to impede another person's apprehension or prosecution shall be liable on conviction on indictment to imprisonment according to the gravity of the offence that the other person has committed or attempted to commit, as follows: (a) if that offence is one for which the sentence is fixed by law, or for which the maximum sentence is imprisonment for life, he or she shall be liable to imprisonment for a term not exceeding ten years.”
[4.3] In considering the appropriate sentence for this accused, the Court takes into account the recent jurisprudence of the Court of Criminal Appeal concerning the sentencing for this offence including the Director of Public Prosecutions v. Kim Kavanagh (Unreported, Court of Criminal Appeal, Finnegan J., 24th July 2008) and the Director of Public Prosecutions v. Mervin White (Unreported, Court of Criminal Appeal, ex tempore, Denham J., 9th November, 2009) but wishes to distinguish those cases on their facts. In evaluating the mitigating factors with respect to the accused this Court has regard to the three mitigating factors identified by the Director of Public Prosecutions with respect to this offence as follows: - the age of the accused, the lack of premeditation and his co-operation with the gardai. This Court also notes two further mitigating factors in respect of the accused; his guilty plea and his expression of genuine remorse.
[4.4] With respect to the offence contrary to s.15 of the Misuse of Drugs Act 1977, as amended, which sets out that a person who has in his possession, whether lawfully or not, a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations under s.5 of this Act, shall be guilty of an offence. Section 27 of the Misuse of Drugs Act 1977, as amended, sets out the statutory penalty for this offence. Section 27 (3) states the following: - “Subject to section 28 of this Act, every person guilty of an offence under section 15 of this Act shall be liable … (b) on conviction on indictment, to a fine of such amount as the court considers appropriate or, at the discretion of the court, to imprisonment for life or lesser period as the court shall determine, or, at such discretion, to both such fine and such lesser period of imprisonment.”
[4.5] This Court has had regard to s. 28 which grants the Court power to order a comprehensive range of reports to assist in determining sentence. This Court acknowledges that the legislature has provided for a maximum sentence of life imprisonment for an offence pursuant to s. 15 of the Misuse of Drugs Act 1977, as amended, however this notional sentence must be seen in the light of any aggravating or mitigating factors. In approaching sentencing Egan J. in the Supreme Court in the Director of Public Prosecutions v. M.  3 I.R. 306 noted at p. 315 that: - “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”. This approach to sentencing has been expressly adopted in the latter decisions of the Court of Criminal Appeal as the correct approach to sentencing and this tallies with the two-step approach adopted by the Court of Criminal Appeal in sentencing persons convicted of drug offences. It is the duty of this Court to adopt the two-step approach endorsed by the Court of Criminal Appeal in the Director of Public Prosecutions v. Duffy (Unreported, Court of Criminal Appeal, Keane C.J., 21st December 2001) and the Director of Public Prosecutions v. Jonathan Ducque (Unreported, Court of Criminal Appeal, Geoghegan J., 15th July 2005). This two-step approach requires that the Court identifies the scale of seriousness for this type of crime i.e. offences pursuant to s. 15 of the Misuse of Drugs Act 1977 as amended and place this particular offence on that scale. The second stage requires that the Court identifies any mitigating factors and reduce the notional sentence appropriately so as to give the accused the benefit of such credit.
[4.6] The Court notes that the legislature and the courts must incorporate a deterrent element in determining sentences for such offenders as acknowledged by the Court of Criminal Appeal in the Director of Public Prosecutions v. David Spratt  I.E.C.C.A. 123 however this Court is also cognisant of its duty to equally consider the possibility of a non-custodial sentence for the accused. In conjunction with the principle of deterrence in sentencing offenders with respect to crimes of this nature, regard must also be had to the following: - the quantity and value of the drugs as upheld in the Director of Public Prosecutions v. Derek Long  3 I.R. 486; the type of drugs involved has also been deemed to be a relevant matter as evidenced by the cases of Director of Public Prosecutions v. Derek Long and the Director of Public Prosecutions v. John Gilligan (No.2)  3 I.R. 87.
[4.7] In relation to the issue of previous convictions, this Court will not have regard to the accused’s minor or historic prior convictions for non-drug offences. In evaluating the mitigating factors with respect to the accused this Court has regard to the two mitigating factors identified by the Director of Public Prosecutions; the age of the accused and his co-operation with the gardai. This Court also notes further mitigating factors in respect of the accused including his guilty plea and his expression of genuine remorse.
[4.8] This Court has been guided by jurisprudence established by the Court of Criminal Appeal in the Director of Public Prosecutions v Simon Pierce (Unreported, Court of Criminal Appeal, Finnegan J., 4th February 2008) on the basis of its acknowledgment of the effect of certain mitigating factors including co-operating with the gardai and the age of the accused. In that case the Court of Criminal Appeal reduced the sentence on the following basis: - “The court is satisfied that the sentence imposed while at the upper end of the sentence appropriate for this particular offence is in error only in one particular. It does not hold out any sufficient light at the end of the tunnel for this young man who is of a young age… While it may not seem a very significant interference with the sentencing having regard to the requirement that this court should not substitute its own subjective view for that of the trial judge it does seem to us that some hope should be held out to him.” The Court has also considered, but wishes to distinguish on its facts, the case of the Director of Public Prosecutions v. Dermot McManus (Unreported, ex tempore, Court of Criminal Appeal, McGuinness J., 21st March 2003).
[4.9] The Court is mindful of adhering to the doctrine of proportionality which requires that a sentence be proportionate to the gravity of the offence and the personal circumstances of the offender. The centrality of the doctrine of proportionality was upheld by the Supreme Court in Director of Public Prosecutions v. M  3 I.R. 306 by Denham J. at p. 316: - “[S]entences should be proportionate. Firstly they should be proportionate to the crime. Thus a grave offence is reflected by a severe sentence. However sentences must also be proportionate to the personal circumstances of the appellant…. The nature of the crime and the personal circumstances of the appellant are the kernel issues to be considered and applied in accordance with the principles of sentencing”
[5.1] In structuring this sentence, this Court is cognisant of the period of time that has passed since the commission of the offence by the accused. The offending behaviour by the accused took place almost four years ago when the accused was eighteen years of age.
[5.2] It is also necessary to note that this Court has considered the possibility of a non-custodial sentence for this accused in respect of these offences however, it seems clears to this Court that this is not an appropriate case for a non-custodial sentence.
[5.3] In determining the appropriate sentence for the accused with respect to the first count on the indictment that the accused impeded the apprehension or prosecution of Conor Duffy in respect of the unlawful killing of Aidan O'Kane contrary to s.7 (2) and (4) of the Criminal Law Act 1997. The Court acknowledges the view of the Director of Public Prosecutions in placing this offending behaviour in the middle to upper range for this offence. The Court notes the three mitigating factors identified by the Director of Public Prosecutions of the accused’s age, his lack of premeditation and his co-operation with the gardai in addition to the further two mitigating factors of the accused’s remorse and his guilty plea as identified by the Court. This Court has determined that the appropriate sentence for the accused is one of six years for this offence however the cumulative effect of the mitigating factors in respect of the accused deems it appropriate to suspend the final three years of this sentence.
[5.4] In relation to the second offence, that the accused had possession of cannabis resin and cocaine for the purpose of selling or otherwise supplying to another contrary to s. 15 of the Misuse of Drugs Act 1977 as amended, this Court has been guided by the jurisprudence of the Court of Criminal Appeal in relation to the principles of sentencing in respect of drug offences and in particular offences contrary to s.15 of the Misuse of Drugs Act 1977. The Court has concluded that the appropriate sentence in respect of this offence as committed by this accused is one of five years imprisonment. The Court, however, acknowledges the two mitigating factors identified by the Director of Public Prosecutions of the accused’s age and his co-operation with gardai. In addition to these mitigating factors the Court also notes the accused’s guilty plea and his expression of genuine remorse. In evaluating the effect of these mitigating factors, the Court is cognisant of the loss of mitigation in respect of the accused’s previous conviction for offences contrary to s.15 and s.3 of the Misuse of Drugs Act 1977, as amended. For this reason the Court will suspend two years of the five year sentence in contradistinction to the period of suspension granted in relation to the sentence given for count number one.
[5.5] Having regarding to the principles of proportionality and totality, this Court directs that each of these sentences run concurrently.