Appeal court sets aside 12-year drugs sentence
The Court of Appeal has set aside a man's 12-year prison sentence for possession of drugs worth more than €4m in a case which raised an “important question” regarding construction of the Misuse of Drugs Act, as amended.
Stephen Geraghty (aged 50), of Neilstwon Drive, Clondalkin, had pleaded guilty to possession of cannabis worth over €4m for sale or supply at Nutstown, Clonee on November 27, 2003 and possession of €350,000 worth of cocaine for sale or supply in Lucan on May 30 2004.
Geraghty was sentenced to 12 years imprisonment by Judge Martin Nolan at Dublin Circuit Criminal Court on December 13, 2011.
However, the Director of Public Prosecution accepted today that there were errors in Geraghty's sentence and the Court of Appeal was required to set aside his sentence.
The court had reserved judgment on Geraghty's appeal last month because the case raised what Ms Justice Mary Finlay-Geoghegan described as an “important question of construction” regarding the act.
Geraghty's barrister, Ciaran O'Loughlin SC, had asked the court to consider whether one can commit or be convicted of a second offence under the act when one hasn't been convicted of a first offence under the act.
If a person is convicted of a second offence under the Misuse of Drugs Act as amended in 2007, then a sentencing judge is obliged to impose a mandatory minimum sentence having regard to exceptional and specific circumstances.
Geraghty was not convicted of the first offence of November 2003 and was on bail when he committed the second offence of May 2004, the court heard. He absented himself from the jurisdiction in September 2004.
Having handed himself in to gardaí in 2009, he was arraigned on both charges on February 2, 2010. He pleaded guilty to both and received his conviction for both on the date of his arraignment.
This morning, the DPP accepted that there had to be a prior conviction for a mandatory minimum sentence to be considered for a second or subsequent offence under the act.
Counsel for the DPP, Roisin Lacey BL, said the DPP also accepted that the sentencing regime which should have applied to Geraghty was the regime which applied in the years 2003 and 2004.
Ms Lacey said the Director accepted that the 2007 amendment to the Misuse of Drugs Act could not have a retrospective affect on sentencing.
She added that the Director only took that view with regards to the particular piece of legislation in question.
Ms Lacey said the two errors did not render Geraghty's sentence as wrong in all the circumstances and whilst there may be errors in the sentence it was not unfair on him.
She said the background to the sentence was the commission of two very serious offences, the very significant valuation of the drugs and the very serious aggravating factor of committing an offence while on bail for an earlier offence.
Ms Justice Finlay-Geoghegan, who sat alongside Mr Justice Gerard Hogan and Mr Justice Garrett Sheehan, said the Court was satisfied by reasons of errors in law that there was an error in principle in the sentence imposed on Geraghty and in the circumstances the court was required to aside and vacate the sentence imposed.
The court will give its full reasons for that decision in a reserved judgment at a later date and must impose a new sentence on Geraghty.
Geraghty's new sentence will be imposed on December 15. He was not present in court for today's legal argument. The court heard that he is suffering from a terminal illness.
The net issue was whether one could be said to have committed a second offence under the act in circumstances where he hasn't been convicted of one, the court had heard. Mr O'Loughlin had said he didn't think the issue had been dealt with before.
Mr O'Loughlin had said there were a lot of cases in recent years of people being convicted of “grow-house” cultivation offences and possession with intent to supply offences at the same time. “One wouldn't be included subsequent to the other,” Mr O'Loughlin said.
