No CCA 63CJA/08

Macken, J.
Budd, J.
McCarthy, J.

THE COURT OF CRIMINAL APPEAL

Between/

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

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-and-

JAMES ROBINSON
Respondent

Judgment of the Court (ex tempore) delivered on the 13th day of October 2008 by Macken, J.	
The court is in a position to deal with the matter of the application by the Director of Public Prosecutions immediately. The court, notwithstanding Mr. O'Higgins' very eloquent argument for the respondent, on the legal position concerning the matter, accepts that the sentence imposed, was unduly lenient, having regard to the provisions of the section which we have been considering. It is true that there was a plea, and it is true that there were admissions of the type that have been discussed, but both the plea - which ordinarily the court would accept was given at the earliest stage having regard to the awaiting of the Power decision - both the plea, and more importantly in the court's opinion, the admissions, are diminished to a very considerable extent by the fact that Mr. Robinson in the present case, was effectively caught red-handed as a result of surveillance. The court accepts, as Mr. O'Higgins says, that the issues might have been subject to challenge and would not be

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necessarily successful in favour of the prosecution, but on balance and adjudicating the facts as best as this court can, the court is of the view that the facts were very substantially against the accused in the present case having regard to the circumstances in which he was caught as a result of the surveillance.
Insofar as the issue concerning the question of being "a player" is concerned, it is true that this is a fairly vague word used, although the court understands the manner at least in which the judge understood it. It is important to note that the accused in this case could not possibly be visited with any higher sentence or any matter against him by virtue of the fact that his co-accused was, on the admission of the garda, considered not to be "a player". The most that could be said and the court thinks it would be fair to say Mr. O'Higgins accepted and recognised this, is that the situation is neutral, but in effect the court takes the view that he cannot actually get any credit by way of a mitigating factor on the grounds that he was not such a player. That is not to suggest in any way that he was a player but simply that the evidence did not establish that he would be entitled to get the credit for not being a player.
Bearing all of these factors in mind and bearing in mind of course that the sentence could be rather larger and higher than the mandatory minimum that is prescribed except in exceptional circumstances, the court considers that the sentence actually imposed in the case was unduly lenient and will therefore set aside the sentence that was imposed in the Circuit Court. That then leads, Mr. O'Higgins, to the position that the court has to consider the appropriate sentence and you are entitled to bring any additional material to the attention of the court. [Mr. O'Higgins does not wish an adjournment to do so and hands some additional material, in particular a testimonial letter]

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Mr. O'Higgins and Mr. Foley, the court has considered the appropriate sentence to impose in relation to this matter. The court is very mindful of the fact that the accused in the present case has used his time very well, and in light of the Addiction Studies programme the court is quite satisfied to deal with Mr. Robinson on the basis that he is wholly drugs free as has been indicated to the court by Mr. O'Higgins. Having regard to what it has already said, the court is of the view that an appropriate sentence in a case such as this where the amount of drugs involved is significant, that the appropriate sentence would be a sentence of eight years. The court will impose a sentence of eight years, but with the last 18 months suspended on terms, the terms to be that he will enter into a bond in the appropriate institution or jail where he is serving at the appropriate time and will undertake any programmes recommended in respect of his post-release supervision which the probation authorities may wish to recommend at that time. It should be clarified that the bond, of course, will be in respect of keeping the peace, and to be of good behaviour, the usual bond, and it will extend for the 18 months.