The Court of Criminal Appeal dismissed Peter McDonnell’s appeal against the severity of his sentence, while finding that a sentencing judge should not have asked how long he had been involved in the drugs trade.
McDonnell pleaded guilty in February 2008 to possessing cocaine for sale or supply at a house in Cushlawn Way, Tallaght, on 10 November 2006. The Dublin Circuit Criminal Court sentenced him in June 2008 to three years in prison, suspending the final 12 months for three years on conditions.
The sentencing judge asked a garda witness how long McDonnell had been involved in the trade. The witness said “a number of years” and described McDonnell as the primary target of the investigation. McDonnell’s counsel objected that this was suspicion unrelated to the offence before the court. The garda also confirmed McDonnell had not been charged with any other offence.
The appeal court said hearsay and opinion evidence can be received at sentencing, including information about an offender’s role in the offence, subject to the sentencing judge’s discretion. If a fact assumes particular significance or is disputed, however, it should be established by strict proof. A person cannot be punished for an offence they were not tried and convicted of.
The court held that the question about how long McDonnell had been involved in the “trade” went beyond what was permissible. It invited an answer suggesting he had committed other, uncharged drug offences. The court distinguished that question from evidence about the relative roles of co-accused in the offence for which they were being sentenced.
The ruling did not change McDonnell’s sentence. The appeal court said the trial judge had imposed the same three-year term on McDonnell and his co-accused, David Doyle, but suspended the whole term for Doyle and only the final year for McDonnell. The judge had identified more mitigating circumstances for Doyle. The appeal court said the disputed evidence had been considered in balancing mitigation, not to increase McDonnell’s sentence, and that other evidence supported the judge’s view that McDonnell had played the more culpable role. It therefore declined to interfere and dismissed the appeal.