The Court of Appeal has dismissed Fergal Berkery’s appeal against the severity of two five-year prison sentences for possessing cannabis for sale or supply, finding that the sentences were not unduly harsh.
The appeal concerned two counts on which Berkery pleaded guilty and was convicted on 21 December 2015 at Dublin Circuit Criminal Court. He was sentenced on 15 February 2016 to five years on each count, with the final 18 months of each sentence suspended on terms for two years after his release.
The appeal court judgment, delivered by Mr Justice Mahon on 12 May 2017, said the drugs were found after gardaí received information, carried out surveillance and obtained a warrant to search Berkery’s address. The search revealed cannabis bars and suspected cannabis resin under a bed in his bedroom. Gardaí also found weighing scales, three cannabis grinders, empty plastic bags and €505 in cash. The judgment valued the cannabis herb at €1,728 and the resin at €18,774.
Berkery accepted responsibility for the drugs when interviewed. He said he had stored them under duress after being kidnapped and beaten. The judgment records that account but makes no finding on the alleged incident.
His appeal argued that the sentencing judge gave insufficient weight to his rehabilitation, guilty plea, time without further trouble and personal circumstances. Counsel told the appeal court that care for his teenage son was the central focus. The court also noted his health problems, support from his children, computer skills and assistance to people from disadvantaged backgrounds.
The appeal court acknowledged those circumstances but said the offences were serious and Berkery had a particularly relevant Belgian drug conviction from 2008, for which he received a 14-month prison sentence and served three months before release on licence. It said an appeal court should interfere with a sentence only where there was an identifiable error or principle, and found none requiring intervention here.
The court concluded the sentence was not unduly harsh and dismissed the appeal. It said that, apart from a first-time offender, a sentence resulting in substantially less than three-and-a-half years in custody could hardly have been justified in the circumstances.