The Court of Criminal Appeal has dismissed a Director of Public Prosecutions appeal against a five-year suspended prison sentence imposed on Ingram McGinty for possessing cannabis resin and cocaine for sale or supply.
McGinty had pleaded guilty to possessing controlled drugs with an aggregate market value of €13,000 or more, contrary to section 15A of the Misuse of Drugs Act 1977. The offence related to drugs he possessed on 23 April 2003. On 29 July 2004, the Circuit Court sentenced him to five years’ imprisonment, suspended on condition that he keep the peace and be of good behaviour for five years and complete the rehabilitation course he was then attending.
The DPP argued that suspending the sentence was unduly lenient, given the seriousness of the offence, the quantity and value of the drugs and the penalties set out in legislation. The DPP accepted that exceptional and specific circumstances meant the statutory minimum 10-year term did not apply. The appeal concerned whether a custodial sentence was nevertheless required.
The Court of Criminal Appeal said offences of this kind would normally warrant imprisonment, but rejected the proposition that a suspended sentence must always be wrong in principle. It said such a sentence could be appropriate in a rare case with substantial special reasons and wholly exceptional circumstances.
In this case, the sentencing judge had evidence of McGinty’s drug dependency, cooperation with Gardaí, and progress in an intensive Coolmine rehabilitation programme. At sentencing, he had attended for more than a year, tested drug-free on 75 occasions, taken on leadership responsibilities and moved into aftercare. The court also noted evidence of his improved relationship with his teenage son and prospects for work as a carpenter.
The appeal court concluded that the trial judge had been entitled to weigh the seriousness of the offence against the risk that imprisonment would disrupt rehabilitation. It was not deciding what sentence it would have imposed itself; the question was whether the DPP had shown an error of principle making the sentence unduly lenient. The court found the DPP had not discharged that burden and dismissed the appeal. The five-year sentence remained suspended, subject to the bond conditions; the judgment said a breach could expose McGinty to serving the sentence.