The Court of Criminal Appeal set aside Gerard Quigley’s sentence for attempting to possess cannabis resin and imposed a new three-year term, suspending the final 12 months.
The court said the sentencing judge had not been told about the relevant penalty provisions or Quigley’s prior conviction for possession of drugs for sale or supply. It held that the prior conviction meant the more lenient penalty scale for first, second or third simple possession offences involving cannabis for personal use did not apply. The available maximum was seven years’ imprisonment, a fine, or both.
Quigley had appealed the severity of a three-year prison sentence imposed on 23 October 2007. He had pleaded guilty to one of two counts: attempting to possess cannabis resin, contrary to section 21(1) of the Misuse of Drugs Act 1977, with the particulars stating that the attempt was to possess the drug contrary to section 3.
The appeal court said section 21(1) covered attempts and other forms of involvement in offences under the Act. It found Quigley was charged with an attempt to possess a controlled drug, not with the substantive section 3 offence or with aiding and abetting. Under the penalty provisions, he could be punished as if convicted of the substantive offence.
The court recorded that Gardaí found about 978 grammes of cannabis resin in a field outside Carrickmacross, County Monaghan, after a surveillance operation. Evidence before the sentencing judge placed Quigley searching along the grass verge outside the field while Cathal Gogarty searched inside it. The court noted that the sentencing judge considered Quigley’s involvement more similar to Gogarty’s than to that of three other co-defendants, who each received one-year sentences. Gogarty had pleaded guilty to a more serious sale-or-supply-related count and received three years.
A submission for Quigley argued that the cannabis personal-use penalty scale applied and that the original sentence was disproportionate. The prosecution argued that Quigley had pleaded to a section 21 offence and that the evidence supported a higher sentence. The appeal court rejected the personal-use penalty argument because Quigley had a prior, more serious drugs conviction: in 2004 he received a two-year sentence, suspended for three years, for possession of drugs for sale or supply. The court said the earlier conviction brought the case within “any other case” under section 27(1)(b).
The court formally set aside the original sentence because the relevant legislation and prior conviction had not been brought to the sentencing judge’s attention. It then resentenced Quigley to three years, suspending the final 12 months in light of his guilty plea, admissions and steps towards rehabilitation, including moving away from the locality and securing work in London.