The Court of Appeal set aside the five-year suspended sentences imposed on Brian Byrne and Eoghan Phayer for a cannabis grow house offence and sentenced each man to three years’ imprisonment.
The court ruled that the original sentences were unduly lenient and a substantial departure from an appropriate sentence. It found that although exceptional and specific circumstances justified going below the presumptive 10-year minimum, the circumstances were not “wholly exceptional” enough to justify wholly suspended sentences.
The men had pleaded guilty to possessing a controlled drug for sale or supply, with an aggregate value exceeding €13,000, contrary to section 15A of the Misuse of Drugs Act 1977. The judgment says the other counts against them were discontinued by nolle prosequi. At sentencing in Ennis Circuit Court on 25 February 2013, each received five years in prison, wholly suspended for five years on a bond to keep the peace and be of good behaviour.
The Court of Appeal described the offence as involving about 300 cannabis plants at various stages of growth in a sophisticated grow house at premises in Aharinaghmore, Co Clare. A garda valued the plants at €120,000. The court said the operation was at the lower end of the spectrum of section 15A offences, but not at its very lowest level. The men had used their electrical skills to establish and maintain the operation for financial gain.
The court also criticised the sentencing judge for treating the absence of the grow house’s main operator as a mitigating factor. It said the operator’s absence could not alter the men’s culpability.
In considering the replacement sentences, the court took account of the guilty pleas, early admissions, cooperation with gardaí, lack of previous convictions, good character, employment, remorse and low risk of reoffending. It also considered the anxiety the men had experienced while living under the suspended sentences and facing the possibility of imprisonment if the appeal succeeded.
The court set a notional sentence of seven years before mitigation and imposed three years on each man, reducing the term by two years to reflect the men’s circumstances since their original sentencing. The judgment states the sentences imposed; it does not specify when either man was to begin serving them.