The Court of Appeal has ruled that a three-and-a-half-year sentence imposed on Mark Kavanagh for possessing drugs for sale or supply was unduly lenient. It will hold a further sentencing hearing and then substitute a new sentence for the original one.
The Director of Public Prosecutions applied under section 2 of the Criminal Justice Act 1993 to review the sentence imposed by the Dublin Circuit Criminal Court on 15 October 2014. Kavanagh had pleaded guilty on 14 April 2014 to possessing controlled drugs for sale or supply and possessing a firearm in suspicious circumstances. The firearm and ammunition offences had been taken into account when the original sentence was imposed; the judgment does not state that a new sentence was imposed on 8 June 2015.
The drugs were valued at €153,000: €135,000 of cocaine and €18,000 of herbal cannabis. A very small quantity of fluoroamphetamine was also recovered. The firearm was a revolver, and the ammunition comprised shotgun cartridges.
The judgment says that, during a search of Kavanagh’s home on 2 April 2013, gardaí found six packages of cocaine and three packages of cannabis in a shed in the back garden. A gun and ammunition were in a bag with gloves. They also found a notebook containing dates and names that appeared to use code words. Kavanagh denied owning the notebook but acknowledged that it contained his handwriting. He told gardaí he had minded the drugs for roughly a few weeks in return for having a €700 drug debt cleared.
The DPP argued that the sentencing judge gave too much weight to mitigation and failed to address evidence said to indicate organised drug distribution. The DPP also argued that the firearms offence required a separate sentence and that the court had not given due attention to the firearms legislation and the public interest in appropriate sentences for firearms offending.
Kavanagh’s counsel accepted the offences were grave but argued the original sentence had been reached after considering the offending and his circumstances. The judgment records that he had no previous convictions, had cooperated with gardaí, and had presented strong testimonials concerning family support, football coaching and community work. Counsel also argued that the DPP should not raise the separate-sentence issue on review after failing to raise it at the original hearing.
The Court of Appeal concluded that the gun offence required a separate sentence and that the original sentence represented a substantial departure from the sentence it considered appropriate. It said the sentencing judge’s intended notional sentence was unclear and that it could not infer one. The court will determine the replacement sentence after a further hearing.