The Court of Appeal set aside a wholly suspended 10-year sentence imposed on Conor Fanning for possession of cannabis worth €235,000, finding that the sentencing judge had given mitigating factors excessive weight. It invited the parties to provide up-to-date sentencing material before the appeal court imposes a replacement sentence.
The Director of Public Prosecutions applied under section 2 of the Criminal Justice Act 1993 to review the sentence as unduly lenient. Fanning had pleaded guilty to a section 15A drug offence. Gardaí stopped his car on the M9 motorway on 29 March 2011 and found 20 packages containing 9.6kg of cannabis in the boot, along with two mobile phones.
The sentencing judge initially said the case warranted 10 years’ imprisonment, then deferred the decision for a year while Fanning remained on bail and cooperated with the probation service. In February 2013, the judge imposed a 10-year sentence suspended for five years, subject to conditions including keeping the peace, remaining drug- and alcohol-free, avoiding gambling and engaging with probation services.
In its review, the Court of Appeal considered the statutory minimum sentence for this type of offence and the legal test for suspending a sentence. It said a wholly suspended sentence required special reasons of a substantial nature and wholly exceptional circumstances. A combination of mitigating factors alone was not enough.
The court acknowledged mitigating matters, including Fanning’s early guilty plea, lack of previous convictions, remorse and progress described in the probation report. It also considered the sentencing judge’s account of Fanning’s limited cooperation and fear of repercussions if he disclosed information about people higher in the organisation. The DPP argued that the sentence failed to reflect the drugs’ quantity and value, Fanning’s role and the absence of material assistance. Fanning argued that the case involved exceptional and specific circumstances and that his conduct since sentencing supported leaving the sentence in place.
The appeal court concluded that the sentencing judge had made an error of principle by allowing the mitigating factors to exert “a quite excessive influence”. It said the case lacked the rare, special and wholly exceptional circumstances needed to justify a non-custodial sentence. The court set aside the sentence and said the replacement sentence would be determined as of the present time. Its judgment gives the parties an opportunity to present updated material; it does not state the replacement sentence.