The Court of Appeal has found that a five-year sentence imposed on Cathal Murtagh for a section 15A drug offence was unduly lenient, but deferred deciding the replacement sentence until it receives updated material from the parties.
The Director of Public Prosecutions sought the review under section 2 of the Criminal Justice Act 1993. The sentence had been imposed by the Dublin Circuit Criminal Court on 6 March 2012. The appeal court’s judgment, delivered on 19 January 2015, did not impose a new sentence. It directed that the parties be given an opportunity to provide relevant up-to-date material, including information relevant to any allowance for the distress caused by a further period in prison.
The case arose after customs officers found Murtagh at a unit in an industrial park on the Malahide Road on 20 April 2011. A search of the unit and a Transit van for which he had a key uncovered cannabis resin, cannabis herb and MDMA tablets. The judgment put the total market value at €3,582,778.
In interviews, Murtagh admitted that he came to know the boxes contained drugs and continued working after being told by his employer that he could not walk away. He described moving and taping boxes for €50 or €60 a day over four or five days in a two-week period, and placing boxes in the van on instructions. The judgment records that he had no previous convictions and that the trial judge viewed him as a minor participant with limited remuneration, an early guilty plea and cooperation with Gardaí.
The DPP argued that the sentencing judge gave too much weight to mitigation and failed to assess the offence against the full range of penalties, including the statutory minimum and maximum. Murtagh’s counsel argued that increasing the sentence nearly three years later, when he had been on community release since 30 September 2014, would be unjust, and that the trial judge had properly weighed the circumstances.
The Court of Appeal held that the sentencing judge made an error of principle by treating the 10-year presumptive minimum as the starting point and reducing it for mitigating factors, rather than first assessing the offence’s seriousness against the statutory range. It said the plea and cooperation justified departing from the minimum and did not disturb that conclusion, but the quantity and value of the drugs required a higher sentence. The court acknowledged Murtagh’s minor role while finding that the five-year term did not reflect the seriousness of the offence.