Drugs: The Judicial Response

(CONTINUED FROM MAY ISSUE) , SC AND PAUL ANTHONY MCDERMOTT, Barrister

Sentencing The dilemma faced by courts in amount of the drug by some period of sentencing persons who are addicted to time.64 General narcotic substances has already been Even if legislation did not noted. This dilemma will continue, distinguish between different types of n Ireland the courts have though the’ ability of courts to deal drugs the courts would still be under a consistently set their face against flexibly with addicts, ordering or duty to do so. The sentences imposed setting down sentencing tariffs. In encouraging treatment and holding out a with regard to various dangerous drugs I 58 The People (DPP) -v- Cannon , the carrot of a review followed by a should bear a proper relationship to one Court of Criminal Appeal rejected the suspended sentence to those who deal another having regard to the relative principle of the validity of sentencing rigorously with their own habits at least seriousness of the drugs.65 The social guidelines: leaves the possibility of reform open. effects of such drugs are often led in ‘The courts here so far have rather set The commercial dealer, who may be evidence in prosecutions. The position their faces against this idea of guidelines a recreational user, is at the most serious with regard to ecstasy was. considered or tariffs for sentences. We put great end of the sentencing scale and the by the Court of Criminal Appeal in The store on the fact that each case must be helpless addict is at the other. In People (DPP) -v- Purcell.66 considered in its individual frame, while between there are the semi-dependent, The investigating Detective Sergeant being mindful that a sentence must be the opportunistic small time couriers and described for the trial court how the proportionate to the offence in question the addict-menace engaged in every widespread use of ecstasy in Limerick and to other sentences imposed in form of criminality with a view to City, particularly among the fifteen to similar situations - though it. needs to be feeding his own habit. Unlike the twenty five age group had led to a big emphasised, that very rarely will two simplistic legislative models that have increase in hospital admissions from the cases be exactly alike.’59 been proposed in many countries, suspected ill effects of the drug. Against What every court, however, is aiming including our own, sentencing this background a sentence of five and a for is not uniformity of sentence, which approaches to such defendants cannot be half years for the possession of two is an impossibility, but rather uniformity based merely on the quantify of drugs in thousand ecstasy tablets was upheld. of approach.60 The obvious legislative their possession. In England, a similar approach was policy of increasing the maximum This is a factor of chance. A major taken in Warren -v- Beeley67 where the sentences for drug offences binds the dealer will make sure, under most Court of Appeal held that the tariff with courts to review their sentencing policy circumstances, to have only a little, if regard to offences concerning ecstasy upwards. A complete absence of any any, of a drug in .his possession. should be maintained at substantially mitigating factor in the behaviour of a Exceptions can occur. Pathetic donkey the same levels as in relation to other defendant is clearly a central factor in a figures can blindly close their eyes to Class A drugs.68 Countries such as large sentence. what might be in a camper van which Canada, with experience of crack- There must come a point where a they are asked to drive from the cocaine, have warned of the severe and person who is a commercial dealer in continent to Ireland. They may later be quasi-immediate dependency which it hard drugs, and therefore a menace to found with huge quantities of drugs. It is forms. The fact that it is a cheap drug in society, cannot escape the maximum too easy to overestimate the importance that country, within the finances of sentence.61 Life imprisonment is never of the mere quantity of drugs involved adolescents has led to exemplary to be imposed automatically for a drug when it comes to sentencing. McFarlen sentences being imposed.69 offence. In this country such a sentence writes: has never been imposed. In New Couriers Zealand, however, Cooke P. has warned ‘The quantity of drugs is but one factor to be considered; care must be n order to excite the sympathy of the that the activities of major drug Icourt, drug traffickers may traffickers should be equated with taken to ensure that an accused is not being sentenced on a “pound by deliberately recruit students or elderly murder as they pose just as serious a 63 persons Courts have warned against 62 pound” basis.’ threat to society. , encouraging this practice by providing Sentences should reflect the quantity misplaced sympathy70 The Alberta of drugs involved, but are not to be Court of Appeal warned that: determined simply by multiplying the ‘Sympathetic though we are to the Where drugs are trafficked to young that the effect of their actions was to plight of many couriers, such people the courts should reflect this fact place their lives, and those of their concerns must give way to the need to in their sentence.75 An extreme example families, in immediate danger.82 The protect society from the untold grief was Condoleon where a sentence of judge upheld the wide range of and misery occasioned by the illicit three years for supplying soft drugs to international authorities which 71 use of hard drugs.’ . girls aged fifteen and seventeen was supported this approach. The High The court held that first time couriers reduced because • the prosecution had Court of Australia has held: should receive three to five years for failed to contend that the girls were not previously interested in marijuana!76 ‘It would be to close one’s eyes to carrying up to 1 kilogram of cocaine, reality to fail to recognise that in and six to eight years for amounts over 1 72 Social Supply areas of organised crime in this kilogram. Couriers are often astonish- country, particularly in relation to .ingly poor, uneducated and vulnerable he possession of drugs for personal drug offences, the difficulties of and so are easy targets to a trafficker Tconsumption is a mitigating factor; obtaining admissible evidence are who will view them as expendable. It in the case of cannabis meriting only a such that it is imperative, in the may be, however, as one commentator fine under our legislation, until the third public interest, that there be a has warned, that persons caught courier- offence, and in the case of other drugs general perception that the courts ing drugs may belong to a class of limiting the sentence to seven years for will extend a degree of leniency, persons whom customs officials are personal possession, as opposed to life which would otherwise be quite trained to look out for. Carrying drugs imprisonment, in the case of possession may well be spread around as diverse a unjustified, to those who assist in for supply. The personal nature of the the exposure and prosecution of group of people as possible in order to consumption has been held to be a lessen the chances of detection.73 corrupt officials and hidden mitigating factor, as can be the fact that organisers and ‘financiers by the drugs were to be supplied only within a Students 77 provision of significant and reliable small circle of friends. The presence of evidence.’83 laims of leniency are made on a commercial motive will be seen as an C behalf of students who are caught in aggravating factor, even if only friends In Ireland, giving evidence in open possession of small amounts of drugs, are involved.78 court that an offender has assisted can particularly cannabis, for personal use. immediately put his life in danger. Our A discharge without conviction may be Drugs for a Third Country Constitution, however, requires that the asked for on the basis, particularly in here is no mitigation in the claim courts operate in public unless a law, this country, that any drugs conviction Tthat drugs were merely in transit to passed subsequent to 1937, allows for a can affect the potential for obtaining another country, or that they were not private hearing. The unavailability of visas. The New Zealand Court of intended for distribution in the country such private hearings means that a judge Appeal has held that each case must be in which the defendant is being tried. can be left in the dark where an offender .examined on its own merits and that Because the drugs trade is an has substantially assisted the police, but there would not be a proper exercise in international business, countries owe to does not otherwise wish to endanger his judicial discretion if offences by stud- each other a duty to co-operate in the life or enter onto a witness protection rents were to be treated as being in a 79 programme. 74 fight against trafficking. special category. In The People (DPP) -v- Loopmans In general, a judge will have regard The fact that a conviction for a and Van Onzen the Court of Criminal to whether the nature and effect of the drugs offence could prove fatal to a Appeal rejected the notion that information related to a trivial or a professional qualification can be possession in Ireland for the purpose of serious offence; whether the information pleaded by way of mitigation. Again, supplying ultimately to the United States brought persons to justice who would the New Zealand Court of Appeal has either destroyed an element of the not otherwise have been brought to refused to create a special category in offence, thus entitling the defendants to justice and whether the defendant was respect of much cases, indicating that be acquitted, or was a mitigating factor. prepared to give evidence against other each case “lust depend on its own facts. offenders in court.84 Where, however, the direct and indirect O’Flaherty J. warned that persons using consequences of a conviction are out of Ireland as a staging post for the Role of the Defendant all Proportion to the gravity of the importation of drugs to other countries ow does one know, unless one offence, “us should operate as an could expect only the severest 80 admits evidence as to police overriding . consideration. treatment. Neither is being a foreigner H 81 suspicions, how serious has been the A lack of remorse by students who a mitigating factor. role of an offender on an individual use soft drugs in order to relax, can Assisting the Investigation charge? In The People (DPP) -v- prove a countervailing factor in the 95 attempt to avoid a conviction. In this n sentencing two members of the Purcell an objection was made in the country the principle most likely to IGreenmount Gang who had promised Court of Criminal Appeal about remarks influence sentencing is that of equality co-operation to the authorities, including by the prosecuting Garda at the of all citizens, be they students from the giving of evidence against other sentencing stage, to the effect that the well to do backgrounds, or the gang members. Judge Cyril Kelly noted defendant was known to the Drug Squad impoverished, in being dealt with by the to be a very close associate of the law. principle dealer in drugs in North , involving the supply of cannabis Banks were, for the first time, made Since 1996 and ecstasy. subject to stringent requirements The objection was that this designed to eliminate the possibility of he departure from this model was observation was unsupported by a blind eye being turned in certain Tintroduced in the Proceeds of Crime evidence and was prejudicial to the circumstances. The reverse is the case. Act, 1996. The Act came into force on accused. The Court of Criminal Appeal An open eye must be turned to banking the 4th of August, 1996. It is now the accepted that a judge could not take into transactions with a view to uncovering subject of a Constitutional challenge. account an allegation unsupported by any covert criminal purpose; Criminal Therefore the Act is simply described evidence, but it was prepared to assume Justice Act, 1994, section 32. without comment on this issue. In that the trial judge, with vast experience Most European States have essence it is much simpler than the 1994 in such cases, would not have taken confiscation provisions. As far as we Act. Any property obtained or received account of any such allegations. If one is can see they are all based upon the fact at any time in consequence of or in not to introduce Garda suspicions and if of a conviction and the possibility connection with the commission of an one is not to pursue a sentencing therefore of establishing profit by offence can be frozen by order of the guideline based merely on amount, the reason of criminal activity.87 From . The court must be satisfied answer would appear to be that the these examples an ideal model of that the property constitutes, directly or prosecution should call evidence of any restraint pending the disposal of a indirectly the proceeds of crime or was factor which it regards as removing a charge, of confiscations of the proceeds acquired, wholly or in part, with potential mitigating factor to the of crime in certain cases with property that represents, directly or accused. presumptions reversing the onus of indirectly, the proceeds of crime. So, while one cannot aggravate a proof onto a defendant was constructed. An interim order, made otherwise sentence by reason of the fact that prior The result was implemented in the than in public, restrains dealing in such unprosecuted crimes have been Criminal Justice Act, 1994. In essence, property for twenty One days or, on an committed, a judge will be aware that a where proceedings have been instituted interlocutory application being brought, failure to advance a ‘once off enterprise’ for an indictable offence or a drug until the disposal of that application. An as a mitigating factor leaves the trafficking offence, or are about to be interlocutory order freezes the property sentence towards its upper limit. instituted, and it is reasonable to think for seven years. Then a final order is made transferring the property to the Similarly, evidence of observed that a confiscation order may be made, 93 activities on prior occasions, when no or where one has been made, the High Minister for Justice. detections were made, evidence of high Court acting otherwise than in public on A civil standard of proof rests upon living, evidence of frequent flying, the application of the Director of Public the applicant. Evidence is admissible evidence of the availability of vast Prosecutions, may restrain the person from an officer of An Garda Sfochana that he or she believes that the property amounts of money, all tend towards the from dealing with all of his property, 94 kind of factors which judges have seen subject to discharge or variation.88 A is the proceeds of crime. Cases to be present in only the worst cases. receiver may be appointed in aid of this proceed in private until such time as a process. person against whom an order is made Dealing With Proceeds This function is by way of either discloses, or has had a reasonable preservation only. A receiver appointed opportunity to disclose the nature of Prior to 1996 after a confiscation order may proceed whatever defence they wish to make; 89 Section 8(4) of the Proceeds of Crime ost European countries have had to sale. A confiscation order is made upon a sentence for drug trafficking90 or Act, 1996; M -v- G, Supreme Court, Mlong standing offences of 911 unreported, 10 May, 1997. A respondent 86 other indictable offence. The court laundering money generated by crime. may also be required to disclose the may determine what benefit has accrued Ireland introduced such a measure only source of their property95 and a receiver to a person by way of their criminal in 1994 through section 31 of the may be appointed at any time when an activity. A person may be required to Criminal Justice Act, 1994. This makes interim or interlocutory order is in force give information as to his property and it an offence for a person who is who, under the control of the court, may if he does not then the court may draw engaged in drug trafficking or other 92 take possession of property and manage, criminal activity to conceal, disguise, an inference from such failure. In the dispose of it or otherwise deal with it.96 convert or transfer any property which case of drug trafficking, assumptions None of these provisions are dependent in whole or in part, directly or indirectly are made against an accused except upon the existence of a conviction or the represents his proceeds from drug where they are shown to be incorrect or institution of proceedings against any trafficking. The mental element involves give rise to a serious risk of injustice. person. They were claimed, as a result, a purpose of avoiding prosecution or a The assumption is that moving back for to be unconstitutional in terms of confiscation order. It is also an offence a period of six years from the time alleged procedural effects and an attack to assist such a person if the secondary when proceedings were instituted, all upon property rights. This argument was party knows or believes the property property received by him was taken free rejected in the High Court, but is now 97 represents, in whole or in part, directly of encumbrance and was a payment or under appeal to the Supreme Court. It or indirectly, the other person’s reward in connection with drug the Act survives the challenge to its 98 proceeds of crime. Finally, it is an trafficking. Similarly, expenditure constitutionality it may operate as a offence for a person who knows or during that time is assumed to have paradigm for comparative legislation. believes that property is, in whole or in been as a result of his carrying on that The purpose of the Act is the creation part, directly or indirectly, the proceeds activity. of; a civil remedy whereby criminals of another person’s crime, to handle that and property. their associates are deprived of profit of their operation.103 ion is left to them within the Member corn crime.” Courts in the United Kingdom seem States of the European Union, will be A defendant has ample opportunity to to be in the forefront of granting orders used in aid of the orders of other defend the application. The only power which operate on a world-wide basis.104 Member States’ courts freezing the that can be exercised without the right to Such an order acts in personam only and proceeds of crime. It is clear that this contest it is the initial freezing order freezes property by binding the will be not just a Europe-wide problem, which under ordinary circumstances will defendant not to deal with it. Third but a global one. not last for longer than a month. An parties without notice may require, As countries move, like Ireland, to interlocutory application can be depending upon the state of national freeze and confiscate the proceeds of contented in the same way as any legislation, formal enforcement crime the natural reaction of organised application for an injunction. In proceedings within the courts of their crime will be to move offshore. Mutual addition, where much an application is own country. The courts may also, in aid enforceability depends upon national granted, whether contested or not, a of freezing orders, extend the duty to laws. It would seem, however, that laws defendant may bring an application100 to make an affidavit disclosing assets to which are less stringent than those overturn any feezing order made. This foreign property.105 outlined above, both in relation to can be on the asis of a contest initiated It is impossible for us to comment on money laundering, non-conviction based after failing to contest an earlier the mutual enforceability of court orders freezing and confiscation and laws application or it can be reason of a which freeze, in aid of the confiscation which place definite and distinct desire to bring further vidence before of the proceeds of crime, assets in obligations on banks to turn an the court after an earlier contest has foreign jurisdictions. At least one such enquiring eye to new customers, been lost.101 A final disposal order of order has been made in Ireland. facilitates an infusion ‘of criminal funds. whatever property is being frozen, or Obviously, on the Mareva model a Strong reasons of policy indicate that converted into cash in a bank y a number of world wide orders have been such activities should not have a hiding receiver, is made only if a defendant as made in ordinary civil proceedings. It place. Potentially serious problems not shown that the property does not may be that judicial attitudes are so arising from the presence of organised constitute, directly or indirectly, the turned against profiting from the crime would surely follow in any proceeds of crime or is not acquired proceeds of crime that whatever discret- country that is perceived to be a weak with in connection with such property. link in the determination to stop drug The court is, moreover, at liberty not traffickers profiting from their activities. make a disposal order, notwithstanding the absence of such proof by the Speculations defendant ‘if it is satisfied that there t present there are approximately 102 would be a serious risk of injustice’. L Afour hundred addicts on the Eastern huge discretion is therefore vested in the Health Board waiting list for treatment. judiciary. One might tentatively suggest Officials estimate that health boards that the legislature does not want needs to open about twenty five more persons to be deprived of property who treatment centres, in addition to the have, in good faith, and who have existing twenty eight, to cope with the knowledge of the true nature of the current demand.106 The Garda Survey of business conducted by the individuals Drug Addicts shows that a substantial with whom they are dealing, provided number of participants had not sought services or goods on a reasonable value treatment of any kind. Reasons for not asis to persons who turn out to be seeking treatment included: it is criminals or their associates. Evidence pointless (20%), it is too hard to get to a given in the constitutional challenge centre (11%), I do not need treatment before McGuinness J. indicated that the (30%) and I would not be accepted for Gardai regarded as an essential treatment (10%).107 component of the struggle against crime Dublin seems to have led the way in that profits should not be safe from developing a truly horrendous drug seizure. addiction problem. It would be nice to A conviction based model carries with believe that we could begin to show the it the necessity to obtain proof beyond way out. In New Zealand, the Court of reasonable doubt that a articular offence Appeal has twice taken time off from an was committed. While is constitu- appeal to consider the evidence of tionally essential if Justice is to be experts as to how the rapid growth of avoided to persons accused of crime, the cocaine use, particularly its derivative manner in which can be laundered and crack-cocaine had occurred in the moved into the hands of associates United States and the United indicates a caution against a conviction Kingdom.108 based model being ideal. Many people In spite of the writers’ lack of comment that Godfathers steer clear of expertise in areas outside of law it has actual execution, but reap the profits. been necessary to dare to express They will commit any offence up to and deluding murder to ensure the. secrecy tentative views as to how problems have In The People (DPP) ‘-v- Cannon, op Confiscation of the Proceeds of Crime arisen and as to bow they might be cit, the Court of Criminal Appeal held (1991)39. capable of solution. that, ‘a supplier of a hard drug like 87. Our only information in this regard is the Courts have traditionally had the task heroin cannot expect any mercy from Law Reform Commission Report; the court, he’ must expect to get an op cit, chapter 3. In addition this was of having to grapple with extreme exemplary sentence’. confirmed by police officers from problems of expert testimony leading 62. R -v- Beri [1987] 1 NZLR 46 at 49. See Finland, France, Belgium and the United them into fields far outside their own also R -v- Curtis [1980] 1 NZl.R 406. Kingdom at a European Police drug areas of competence. When it comes to 63. Drug Offences in Canada - 549. conference which the first author drug addiction we are dealing with 64. Alien, Unreported, 27 April, 1995 (CA,. attended in December, 1997. criminogenic substances which relate to WA). 88. Sections 23 and 24 of the Criminal people’s failings and weaknesses, the 65. See Rinaldi - Drug Offences in Australia, Justice Act, 1994. inter-relationship of groups within page 7. 89. Section 19(5) of the Criminal Justice 66. CCA, Unreported, 14 July, 1997. Act, 1994. society and the horrible effects that it 67. [1996] 1 Cr AppR (S)223. 90. Section 4. has on self-inflicted victims and those 68. See generally Bucknell - Misuse of 91. Section 9. who, in turn, become the victims of Drugs (1996) para 9.001. 92. Criminal Justice Act, 1994, section 11. those victims. If there is anything that 69. R -v- Dorvilus, 60 CCC (3d) 437. 93. Proceeds of Crime Act, 1996, section 3. has been learnt from a survey of this 70. R -v- Hamouda (1982) 4 Cr App R (S) 94. Section 8. area it is that warehousing does not 137. English cases on sentencing 95. Proceeds of Crime Act, 1996, section 9. work. Simple determinate sentences, couriers include: Ayoub (1972) 56 Cr 96. Contrast the powers under the Criminal except for those deserving of the highest App R 581; Mehagian & Fen-wick Justice Act, 1994, section 24(7) for (1972) 57 Cr App R (S) 488; R -v-Mbely interlocutory receivers and section 20(2) possible punishment which a court can (1981) 3 CrimApp R (S) 157. for final receivers after confiscation impose, rarely work. 71. R -v- Cunningham, 104 CCC (3d) 542 at order which has the same words as in Forcing dependants into viewing 574. No mercy will be shown to a section 7 of the Proceeds of Crime Act, themselves as having a problem, using courier motivated by greed: Farrugia, 1996. alternatives to imprisonment, catching Unreported, 31 March, 1979 (CCA, 97. See Gilligan -v- The Criminal Assets offenders early and diverting them into NSW). Bureau, Ireland and the Attorney probation and treatment programmes, 72. See also Choon Sien Tee (1994) 71 A General, McGuinness J. Unreported, 26 and offering the prospect of sentencing Crim R 181 at 183. June, 1997. 73. Shiels - Sentencing the Drugs Courier 35 98. As to a previous challenge to a similar reviews or more lenient sentences with JLS 228 (1990). kind of confiscating measure see Clancy suspension on probation under strict 74. Police -v- Roberts [1991] 1 NZLR 205. -v-Ireland [19SS] IR 326. conditions to those who look at their 75. R,-v- McAuley, 52 Cr App R 230. 99. See remarks in relation to the problem seriously seems to be the only 76. 69 A Crim Rep 573 (1993). corresponding British legislation of response that offers any prospect of 77. Bennett (1981) 3 Cr App R (S) 68 and Leggatt L.J. in Re: Thomas [1992] 4 All success. On the executive side resources see Rinaldi at 243. ER819. must be made available on a phased 78. Bowman Powell (1985) 7 Cr App R (S) 100. Section 3(3) of the Proceeds of Crime basis to those programmes which are 85; Leaver, The Times, 14 March, 1989. Act, 1996. 79. R -v- Prickong [1990] 1 NZLR 5 at 7; 101. In any event, the Act is not even limited shown, after initial and intensive pilot 109 “This country must co-operate with by that fairly obvious restriction. studies, to work. On the police side others and have regard to their interests 102. Section 4(8) of the Proceeds of Crime the continuing and urgent nature of their in combating the international drugs Act, 1996. struggle calls for our admiration and scourge’. 103. Per Carney J. in the Director of support. 80. Court of Criminal Appeal, Unreported Public Prosecutions -v- The Special ______June, 1996. Criminal Court, High Court, 81. Rinaldi at page 35. Unreported, 14 March, 1998. 58. CCA Unreported, 15 December, 1997. 82. Circuit Court, Unreported, September 104. Derby -v- Weldon and Others, [1990] Contrast to R -v- Armah 76 Cr App R and November, 1997. Ch48; [1989]WLR276. 190 (1982) where the English Court of 83. Malvaso -v- The Queen [1989] 16S CLR 105. Deutsche Bank -v- Murtagh [1995] 1 Criminal Appeal established a general 227. ILRM 381, citing Derby -v- Weldon range of sentence tariffs for drug 84. R -v- Sivan (1988) 87 Cr App R 407. See (above). offences. also Malvaso -v- The Queen [1989] 168 106. The Irish Times, 9 March, 1998. 59. It is to be noted that previously in The CLR 227; R -v- Delellis [1990] 2 NZLR 107. Illicit Drug Use and Related Criminal People (DPP) -v- Preston, CCA, 147; The People (DPP) -v-Maloney 3 Activity in the Dublin Metropolitan Unreported, 15 October, 1984, the court Frewen 267 at 269 where a failure to Areas, 1997, page 24. adjourned its determination so that a list give evidence was held to be an 108. See R -v- Latta [1985] 2 NZLR 504; of previous relevant sentences could be improper factor in aggravating sentence; and R -v- McFartane [1992] 3 NZLR prepared for its consideration. Tariffs Choon Sien Tee 71 A Cim R 181; 424. have also been rejected in Scotland and Sehitoglu and Owkan [1998] 1 Cr App R 109. We would like to thank Sharon Kearney in Canada; see R -v- Lessard 59 CCC (S) 89; R-v- Tsolacos 81 A Crim R434. LL.B for assisting in the final form of (3d) 123 and Lord Fraser - What Price 85. Court of Criminal Appeal, Unreported, this paper and for offering many useful Drug Abuse - The Prosecution of 14 July, 1997. See also The People suggestions. Offences of Drug Abuse/Distribution in (DPP) -v- Walsh, 3 Frewen 248 (1989) . Scotland, 184 Scolag 8 (1992). and The People (DPP) -v- McEntee, 60. Bibi (1980) 2 Cr App R (S) 177 at 179. CCA, Unreported, 10 November, 1997. 61. See the remarks of McMahon J. in The 86. Law Reform Commission Report - The People (DPP) -v- Larry Dunne, •Unreported, High Court, 23 May, 1985.