The Court of Appeal has replaced a wholly suspended five-year sentence imposed on Brian O’Grady for a drug offence with a five-year sentence, half of which is suspended. The court ruled on 19 July 2018 that suspending the original sentence in full was unduly lenient, but ordered that the sentence run from when O’Grady first enters custody.
The Director of Public Prosecutions sought a review under section 2(1) of the Criminal Justice Act 1993. The DPP accepted that there were grounds to depart from the statutory presumptive minimum, that five years was an appropriate sentence and that some of it could be suspended. The challenge was to suspending the whole term.
The case arose from a Garda surveillance operation on 12 February 2016. Officers observed O’Grady meet two men who had travelled from Cork at an Aldi car park in St Margaret’s, Dublin. Two bags were transferred from the Volkswagen Passat O’Grady had driven to a Ford Focus. Gardaí stopped the Focus and found just over 20kg of cannabis resin, valued by Gardaí at more than €122,000. O’Grady made admissions in interviews after his arrest.
The sentencing court heard that O’Grady had become involved to help his younger stepbrother with a €2,000 drug debt, amid difficult family circumstances. The judge identified his guilty plea, cooperation, admissions, personal background and work record as mitigating factors, and assessed his moral culpability as low. On that basis, the judge imposed a five-year term suspended in full.
The Court of Appeal said wholly suspended sentences for section 15A offences were rare and required substantial special reasons and wholly exceptional circumstances. It accepted that O’Grady’s motive and family background were relevant and justified a substantial departure from the statutory minimum. But it concluded those factors could not justify suspending the sentence entirely. The court also said O’Grady had brought a significant quantity of drugs to the meeting and handed them to the men from Cork, so it was not persuaded that his involvement could properly be characterised as merely moving drugs from A to B at the lowest level.
The court resentenced O’Grady to five years’ imprisonment, suspending two and a half years in light of the mitigation and the fact that he had believed he had avoided custody. It noted that he had since moved to Britain and was working in construction. The custodial sentence is to run from the date he first enters custody.