The Court of Criminal Appeal refused John Costelloe leave to appeal his 12-year sentence for possessing drugs for sale or supply, with the final two years suspended. The judgment, delivered by Finnegan J. on 2 April 2009, found no error of principle in the sentence and left it unchanged.
Costelloe had pleaded guilty on the second day of his trial to an offence under section 15A of the Misuse of Drugs Act 1977. The offence occurred on 1 September 2004. Gardaí had been surveilling a Volvo driven by Costelloe, with Séan Hanley in the front passenger seat. After Gardaí activated their flashing lights, the car tried to evade them and a package was thrown from the passenger window. It contained amphetamines valued at about €45,000.
At sentencing, the trial judge imposed 12 years’ imprisonment and suspended the final two years. Costelloe appealed, arguing that the sentencing process had been truncated, that the judge had not properly considered whether exceptional and specific circumstances justified a sentence below the statutory minimum, and that insufficient credit had been given for his guilty plea.
The appeal court said the judge had considered the drug value, Costelloe’s personal circumstances and reports, evidence from his partner and father, and the timing and circumstances of the plea. It agreed that the late guilty plea did not amount to exceptional and specific circumstances under the statutory test. The court also said Costelloe’s role as a “mule” and his drug debt were relevant to sentence, while noting that a mule’s role can assist people higher in the drugs trade.
The judgment said the trial judge gave no reason for suspending two years, and the basis for that concession was unclear. The appeal court nevertheless declined to interfere with it. It also held that the trial judge was entitled to exclude three written testimonials and rely on sworn testimony and the admitted reports.
Costelloe argued his sentence was disproportionate to Hanley’s 10-year term. The appeal court said the two men could reasonably be treated as having equal involvement, but Hanley’s age, health, psychiatric conditions and personal history distinguished his circumstances. Those differences justified the small disparity, the court concluded. It therefore refused leave to appeal.