Judgment: approved by the Court for handing down
(subject to editorial corrections)

Ref:	 

Ref:	CARF3355

Delivered:	

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____  

THE QUEEN

V

SEAN GERARD TERENCE MARTIN DARRAGH and 
NORA EDITH ANN BOYD

_____ 

CARSWELL LCJ

	The applicants were sentenced on pleas of guilty by McCollum LJ, sitting at Belfast Crown Court on 8 May 2000, to custody probation orders containing substantial custodial elements for offences relating to the possession and supply of controlled drugs.  Each sought leave to appeal, but leave was refused by the single judge.  They have both renewed their application to the court.
	 The sentences imposed  were as follows:
Darragh
Count 1, possession of a Class A drug (Ecstasy) with intent to supply -- custody probation order, consisting of nine years’ custody and one year probation.
Count 2, possession of a Class B drug (cannabis resin) with intent to supply – five years’ imprisonment.
Boyd
Count 5, possession of a Class A drug (Ecstasy) with intent to supply – custody probation order, consisting of six years’ custody and three years’ probation.
Count 6, supplying a Class B drug (cannabis resin) – five years’ imprisonment.
Count 7,  possession of a Class A drug (cocaine) – six months’ imprisonment.
Count 8, possession of a Class A drug (Ecstasy) with intent to supply – custody probation order, six years’ custody and thee years’ probation. 
Count 9, possession of a Class B drug (cannabis resin) with intent to supply – five years’ imprisonment.
All sentences were concurrent.
	On 6 September 1999 police were instructed to stop two cars in south Belfast, driven by the respective applicants.  Sean Darragh attempted to escape by driving at high speed down Tate’s Avenue, mounting the footpath and ramming a police car blocking his way.  He crashed into a barrier, then ran from the car into a house in Donegall Avenue, where he asked the occupant to hide him from the police.  Police officers entered the house and arrested him.  They found in his car five packets of Ecstasy, containing a number of tablets estimated by weight at 4693, and sixty blocks of cannabis resin, weighing a total of 14.97 kg.  Darragh refused to account for the drugs before consulting his solicitor.  In interview he was unco-operative, claiming that another person (whom he averred he was afraid to name) had been in the car and had “baled out” before he was apprehended, a version dismissed by the police and the judge.  He denied knowledge of the drugs found in the car, averring only that he took possession of a package from a girl in a white car.
	When her car was stopped by the police on Lisburn Road Edith Boyd began to cry uncontrollably and told the officers that that the man in the red car, whom she did not know, had collected a package from her which contained drugs and that she had taken it to him as a favour for a friend.  She then admitted that she had more drugs at home and a small bag of “speed” (amphetamine) in her handbag.  The latter when tested was found in fact to consist of 356 mg of cocaine.  In a search of her home that evening police found in her bedroom a holdall in which were four packets of Ecstasy, containing 3730 tablets, and 72 bars of cannabis resin, weighing 17.97 kg.  Four further packets of Ecstasy, containing 3960 tablets, were in a shoebox in the same room.
	When interviewed by police Miss Boyd made immediate and complete admissions of her part in the drugs transaction and, according to a letter from a drugs squad officer furnished to the court, was fully co-operative.  She told them that she had been asked to store and deliver drugs by a man whom she had known for about a year.  She was in debt following a holiday in Australia and he offered her £1000 to make the deliveries.  She appears, from her account to Dr Bownes, to have been tempted into accepting his offer by his constant repetition of the ease with which she could make this money.  A few days before she had gone to Ballymena, as the result of a telephone call from the man, and collected a heavy consignment of drugs in a blue sports bag.  She ferried the contents in instalments into her house and concealed them in the bedroom which she shared with her sister.  She was given a mobile phone and instructed to ring another man.  She was told to take 60 bars of cannabis and five bags of tablets and hand them over to him.  She met the man, who was Sean Darragh, at the King’s Head bar and followed him a short distance from there. He took the drugs from the boot of her car and transferred them into his own.  They then set off and were apprehended by police shortly afterwards.
	Darragh, aged 31, was convicted in 1996 of several drugs offences going back to 1992.  He has been a regular drug user since the age of 22, though he claims to have rid himself of his addiction when in prison a few years ago.  His dealing in drugs now appears to be purely for personal gain.  The pre-sentence report states of him:
“He is a man of some academic ability who has from sixteen years found little focus in his life in terms of gainful employment, settled personal relationships and a legitimate lifestyle.  Mr Darragh’s involvement in crime seems to stem from the desire for financial gain.”

It is suggested in the report that assistance in supervision after his release may provide an incentive to him to seek a legitimate lifestyle to support his present partner and child.  
	A considerable amount of material was put before the court about Edith Boyd, consisting of a pre-sentence report, a psychiatric report and a number of references.  Aged 27, she lived before her arrest with her family, who have a professional background.  She has no criminal record, apart from one offence of careless driving.  She started taking drugs as part of her social activity about four years ago, but says that she has now ceased.  She has since her schooldays adopted a rather rebellious lifestyle, somewhat isolated from her family, with unfortunate peer associations with persons among whom the drug culture was a prominent feature.  She undertook the involvement in the storing and distribution of drugs in order to make money to pay debts which she had incurred by unwise use of her credit card.  The pre-sentence report describes her as an immature and somewhat naïve young woman who has struggled to establish her identity.  The probation officer expressed the opinion:
“It is my opinion that all of these factors have influenced her participation in the present offences.  She is acutely aware of the gravity of her offending and has resigned herself to spending a considerable period of time in custody, of which she is extremely fearful.  She did not seem to minimise her culpability for her behaviour, accepting responsibility for her actions.  She appeared genuinely remorseful for the trouble and distress she had caused and was adamant that the sobering experience of Court would serve to deter her from reoffending.”

She considered that probation after her release with a suitable programme would help to support her and develop alternative coping skills and support networks.
	Dr Bownes’ report gave a similar picture of Miss Boyd.  He described her as rather immature and egocentric, displaying quite a marked lack of insight into the wider context of the situations she described.  Her feelings of shame and remorse and her worries about the future were prominent, and she presented a clinical picture consistent with the symptoms of anxiety and depression which she related.  He considered that she would benefit from professional support from the Probation Service, as she had the personal resources to learn from her recent experiences and avoid any further contact with the criminal justice system should she be motivated to do so.
	The learned judge made a full and careful assessment of the part which each defendant played and the circumstances of each.  He was unable to accept that Darragh was a mere courier or transporter of the drugs, as he claimed, as a subordinate at the behest of someone else.  He expressed in detail his reasons for this conclusion, with which we agree, all of which pointed to Darragh’s being a person directly involved in the business of drug trafficking and not a mere messenger duped or persuaded into carrying drugs.  He took the view that the quantity of drugs involved was such that if the case had been contested he would have regarded the appropriate sentence as one of twelve years’ imprisonment.  The plea of guilty brought that down to ten years, and he decided, notwithstanding the scepticism which he expressed about the effect which probation might have on Darragh, to make a custody probation order, consisting of nine years’ custody and one year’s probation.  He made that order on count 1, with lesser concurrent sentences on the other counts.
	The judge accepted that Edith Boyd had played a subordinate role in the matter and that in terms of her commitment and involvement she was at the lower end of the scale.  He stressed, however, that her good record and family background could not in such a case be allowed to influence to any great extent the sentence imposed, for “leniency would send out the wrong signal to persons tempted to engage in this lucrative traffic.”  As between the defendants, he balanced the fact that the quantity with which Miss Boyd was concerned was greater against her considerably lesser degree of involvement in the organisation of the distribution of the drugs.  He concluded that if she had been more deeply involved the proper sentence would have been “close enough to ten years’ imprisonment”.  He stated that taking into account all the circumstances of the case the sentence which he would have imposed if he had not made a custody probation order was one of eight years.  He decided to make a custody probation order, composed of six years’ imprisonment and three years’ probation.  He ordered that on counts 5 and 8, with lesser concurrent sentences on the other counts.
	 The argument on behalf of Darragh was based very largely on the arithmetical or formulaic approach to sentences which we have repeatedly discouraged.  Mr McCrudden QC sought to demonstrate that the effective sentence passed on him fell outside the parameters indicated by certain guidelines, and then attempted to argue that because Edith Boyd had a larger amount of controlled drugs in her possession Darragh’s sentence should be lower in relation to hers.  It may be encapsulated in the complaint which he made in the course of argument, that “Darragh ended up receiving twice the custodial term of Boyd for half the amount of drugs”.  
We can dispose of this submission summarily, and at the same time set in context the function of the sentencer in this type of case.  Guidelines, as their title indicates, are designed to give guidance to judges faced with the difficult and infinitely variable task of passing sentences.  As Lord Taylor of Gosforth CJ stressed, however, in R v Warren and Beeley [1996] 1 Cr App R  120 at 123, the criteria have been laid down for guidance only.  The figures which they contain reflect broadly the fact that in general persons caught dealing with substantial amounts of controlled drugs are guilty of more heinous offences than those concerned with small amounts.  They are, however, only a starting point, and the sentencer is free to depart from them in either direction.  They are of most assistance when the court is concerned with persons who have been trading in the substances, for in their case differences in amounts may be quite a valid guide to differences in guilt.  What a sentencer should aim to do is to fix upon the quality of the defendant’s act, which will depend on an amalgam of factors, the amount involved being only one.  Mitigating factors may then be taken into account, and the extent to which they can influence the sentence will depend on the nature of the case as well as the circumstances of the individual defendant.  As the judge properly remarked, the necessity to pass sentences which will deter those tempted to deal in drugs for profit may reduce the extent to which personal factors can be allowed to operate in mitigation.    
	The judge quite rightly took an adverse view of Darragh’s merits.  He is a professional drug dealer, supplying drugs for consumption by others for his own profit.  We have often enough categorised such offences as “a great  scourge on the community” and made it clear that those who commit them will receive lengthy custodial sentences.  As MacDermott LJ said in R v McIlwaine [1998] NI 136 at 141:
“The public is entitled to be protected from the evil of drug abuse and it is the duty of judges in this jurisdiction to make it clear that they will seek to discourage anyone from participating in that trade.” 

 There is no redeeming feature in Darragh’s case, neither remorse nor co-operation, and the only matter in his favour is his plea of guilty, which was on the facts of the case inescapable.  We consider that the judge was quite justified in regarding the offence as one which should carry a sentence of twelve years on a contest and in reducing it to a notional ten years before making a custody probation order.  We do not consider that it was wrong in principle or excessive and see no reason to interfere with it.   We therefore dismiss Darragh’s application for leave to appeal.
	Edith Boyd’s case presents an altogether different set of considerations.  The judge was in our view quite right to stress the seriousness of her offence.  As Crown counsel properly pointed out, to describe her just as a courier would be charitable, for she was warehousing a large quantity of drugs and dividing them up for distribution.  She was doing it with her eyes open for gain, albeit of a modest amount in relation to the value of the substances.  Such people form an essential link in the chain leading to the drug users, and we consider that the judge was justified in regarding the offence as one approaching double figures on a contest.  
	Mr Finnegan QC submitted, in our view with some justification, that a larger discount for Miss Boyd’s plea of guilty should have been given.  Unlike Darragh, she has shown considerable remorse, which has been accepted by the probation officer and Dr Bownes as genuine, and she has co-operated with the police.  We think that if the court were not making a custody probation order a term of seven years would be appropriate, and that this should constitute the “gross sentence” specified under Article 24(5) of the Criminal Justice (Northern Ireland) Order 1996.  
	We fully agree with the judge’s decision to make a custody probation order, which seems to us to be particularly appropriate on the facts of this case.  If a defendant is really likely to benefit from probation and to keep clear of further offending with the help of the supervision which it affords, then there is much to be said for making the length of the probation element more than merely nominal.  We agree with the judge’s assessment that a period of three years is right for this case, though it might be rather too long in many others.  We consider, however, that the reduction of the gross figure by only two years was insufficient, for we think that it is generally appropriate that the reduction should equate with the period of probation: see our discussion of the principles applicable in R v McDonnell [2000] NI 168 at 172.  We propose to vary the custody probation order to one in which the custodial element is four years and the probation supervision three years.
	We shall therefore grant leave to appeal in Miss Boyd’s case, allow the appeal and vary the sentence accordingly. 

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____  

THE QUEEN

V

SEAN GERARD TERENCE MARTIN DARRAGH and 
NORA EDITH ANN BOYD

_____ 

J U D G M E N T

O F

CARSWELL LCJ

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