The Court of Criminal Appeal refused an application by Alan Morrison and Aidan Finnegan for a certificate to appeal to the Supreme Court, ruling that the point they wanted certified had not been involved in the earlier decision on their application for leave to appeal against sentence.
The applicants had been convicted by a jury in the Circuit Criminal Court in Cork on 25 June 2009 of possessing a controlled drug for sale or supply. Each received a 12-year prison sentence. Their applications for leave to appeal against conviction and against the severity of their sentences were dismissed in 2011 and January 2012 respectively.
They then sought a certificate under section 29 of the Courts of Justice Act 1924, as amended, asking whether an applicant alleging an unexplained sentencing disparity must produce evidence about a co-accused’s case, and whether the prosecution must produce the co-accused’s sentencing transcript.
The applicants relied on the sentence imposed on John McCarthy, also referred to as Carey in the judgment, who received 10 years’ imprisonment with five years suspended after pleading guilty to a drug possession offence. The judgment said his drugs were different from those in the applicants’ case, were found at his residence and were not connected to their drugs. It also recorded evidence that he had co-operated with gardaí.
At the applicants’ sentencing hearing, Detective Sergeant Lar O’Brien described surveillance in which Finnegan was seen retrieving a bag from a stash and handing an item to Morrison. The bag was later recovered and found to contain 215.6 grams of heroin, which the officer said had a street value of €43,120. O’Brien also gave evidence about the applicants’ previous convictions.
The sentencing judge said he could have regard to the other sentence, but noted the guilty plea and co-operation in that case and considered the circumstances before him “a very different situation altogether”. The Court of Criminal Appeal said the applicants’ counsel had not sought the other sentencing transcript or additional evidence at trial, and the notices of appeal had not alleged a procedural defect on that basis.
The court said an application to certify a point of law could not serve as a rehearing of the sentence appeal. It concluded the proposed issue had not been raised at trial, included in a ground of appeal, or argued in the leave application. The court therefore held that the issue was not involved in the determination of that application and refused the certificate request.