09/01/2023 0 Comments
Appeal against Severity of Sentence
The appellant was convicted of the offence of cultivation of cannabis plants without licence contrary the Misuse of Drugs legislation and sentenced to three years imprisonment with the final year suspended. He appealed on the grounds of severity of sentence in that the trial judge erred in principle.
The Gardai on entering his home found the entire upstairs converted into an area for the cultivation of cannabis plants. The appellant admitted the offence and pleaded guilty.
The appellant’s personal circumstances were outlined to the court in mitigation. At ten weeks old he was sent to an industrial school, where he remained until he was collected by his mother at age twelve. When his mother proved unable to keep him, the appellant went to live in a care home in Wales. He apprenticed to become a plasterer and was quite successful working in that trade in different countries. He then bought a pub and sold in 2016 and the following year moved to Galway to assist a support group called the Tuam Home Survivors Network. Savings he had were used for the support group and when he was low on money, he borrowed from third parties on the condition that he permitted his rented property to be used as a cannabis grow house. References were produced of his charity work.
The trial judge placed the offending at the mid-range and identified a headline sentence of four and a half years’ imprisonment. In assessing the gravity of the offence, he pointed to the sophisticated nature of the operation, the volume of plants and the value just shy of €40,000.00.
It was submitted on appeal that the sentence was excessive, that the judge erred in believing the appellant was growing the cannabis for profit and the judge failed to give sufficient mitigation for a guilty plea.
The judge reviewed the law on the principle of mitigation and while there were strong mitigation factors, the trial judge did not err on the principles, accordingly the appeal was dismissed.
DPP v Fennell IECA 14