The Court of Appeal has dismissed an appeal by Daniel Muszak against a six-year sentence for possessing cannabis valued at €39,000, finding no error of principle in the sentencing judge’s approach.
The sentence was imposed by Cork Circuit Criminal Court on 31 October 2017 after Muszak pleaded guilty to possessing cannabis contrary to section 15A of the Misuse of Drugs Act 1977. The final three years were suspended on condition that he keep the peace and be of good behaviour after release.
The appeal court’s judgment, delivered by Mr Justice McCarthy on 5 October 2018, said surveillance showed a second man bringing the cannabis to Muszak’s home. Gardaí entered the apartment under warrant and found the cannabis in the kitchen beside weighing scales, where Muszak and the unidentified man were standing.
Muszak admitted possession after some time, telling gardaí he was holding the cannabis briefly before it was moved elsewhere. The prosecution said he gave a “somewhat dubious account” of meeting a man he did not know well outside a shop on Patrick Street and agreeing to hold the drugs for money. He said he needed money and had planned a Christmas trip to Poland. The judgment said he otherwise failed to materially assist.
At the time, Muszak was 38, worked as a storeman and had lived and worked in Ireland for nine years. The court noted that he had no previous convictions, was of good character, had a long-term partner and a seven-year-old son, and was closely involved in the child’s care. His partner gave evidence.
The appeal argued that the sentencing judge gave insufficient weight to mitigation and the guilty plea, and that the sentence was unduly severe. Muszak’s lawyers also submitted that the judge erred by treating his lack of drug addiction as an aggravating factor and had failed to account for his previous good character.
The Court of Appeal said the guilty plea had been explicitly considered. Although the sentencing remarks did not expressly mention Muszak’s lack of previous convictions, the court concluded from the hearing and transcript that the judge had taken it into account. It said the judge’s reference to Muszak not being a drug user was intended to distinguish his case from possession driven by addiction, which might reduce culpability; the wording could have been clearer.
The appeal court considered the sentence neither severe nor unduly severe. It said it could interfere only where there was an error of principle, and found none. The appeal was dismissed.