The Court of Criminal Appeal has replaced a four-year sentence, with its final two and a half years suspended, with seven years’ imprisonment for Rory Lernihan’s possession of cocaine for supply. The court found the original sentence unduly lenient and imposed a new sentence after considering the case afresh.
The Director of Public Prosecutions applied under section 2 of the Criminal Justice Act 1993 to review the sentence imposed by Cork Circuit Criminal Court on 23 June 2006. The appeal court’s judgment was delivered on 18 April 2007.
Lernihan had pleaded guilty to possessing cocaine for supply, with a market value exceeding €13,000, and possessing cannabis. The appeal court said drug squad officers stopped and searched him in Silversprings Lane, Cork, on 13 December 2004. He was found with a kilogram of cocaine, which the court put at an approximate market value of €72,000. A subsequent search of his home at 14 Ashmount Court, Mayfield, found a small amount of cannabis resin, accepted as being for personal use.
Evidence before the court was that Lernihan said he had received the cocaine shortly before his arrest and was holding it for €500. Detective Sergeant Larry O’Brien described his cooperation as limited. He did not provide information about where the drugs came from or what he intended to do with them. The court noted that Lernihan had no previous convictions, pleaded guilty early, expressed remorse and had sought counselling.
The DPP argued that the original sentence was unduly lenient, including because the sentencing judge had relied on mitigating factors both to reduce the term and to suspend part of it. Lernihan’s counsel accepted that the four-year term was lenient but argued that the issue was whether suspending part of it made the sentence unduly lenient. The court held that, once it quashed the single sentence, it had to determine the appropriate sentence afresh and was not limited by the scope of the DPP’s submissions.
The court said the original sentence failed to give due weight to the offence’s gravity and applied mitigating factors twice. It considered the statutory framework, which provides a presumptive minimum of ten years for the offence but allows departure where exceptional and specific circumstances would make that term unjust. The court described this offence as at the lower end of the range between ten years and life imprisonment.
Taking account of the early guilty plea, limited assistance to gardaí, lack of previous convictions and remorse, the court concluded that seven years’ imprisonment was appropriate. The judgment ordered that sentence in place of the quashed term. It did not state a separate order about suspending any part of the seven-year sentence.