Report on Mandatory Sentences - Law Reform Commission

creates a risk of arbitrary and unjust consequences which is mitigated only by the exercise of the limited
judicial discretion accorded by section 27. 25
(i)
The People (DPP) v Connolly
4.17 The process by which market value is determined was considered by the Supreme Court in The
People (DPP) v Connolly. 26 The appellant had been charged with an offence under section 15A when 10
packs containing 10 kilogrammes of drugs were found in his car. Five of the 10 packs were analysed and
found to contain amphetamine. While the purity of the amphetamine was not tested, the forensic
evidence was that “in general” purities fell between 10 percent and 40 percent. On cross-examination, it
was conceded that the presence of as little as 1 percent of amphetamine could trigger the results which
had been achieved. The crucial issue was whether the threshold market value of €13,000 had been
established. If there had been 10 percent of amphetamine in five of the packs, the value of the drugs
would have been approximately €72,877.50. However, if there had only been 1 percent of amphetamine,
the value would have been €7,287.75 which would not have triggered the statutory minimum sentence.
4.18 In the Circuit Criminal Court, the appellant sought a direction that there was no case to answer on
the ground that there was insufficient proof that the drugs were worth €13,000 or more. The trial judge
refused the application and sentenced the appellant to 10 years’ imprisonment. The appellant appealed
to the Court of Criminal Appeal on the ground that the trial judge had erred in not withdrawing the case
from the jury. The Court of Criminal Appeal dismissed the appeal but, pursuant to section 29 of the
Courts of Justice Act 1929, certified the following question as a question of law of exceptional public
importance:
“In a prosecution pursuant to section 15A of the Misuse of Drugs Act 1977, for the purpose of
ascertaining the amount of a controlled substance present in a powder in a sealed container or in
a number of such containers proven by expert evidence to contain that particular controlled
substance, may the amount of that controlled substance present in the powder be established by
the oral evidence of an expert as to the range within which amounts of that controlled substance
in other powders generally fell and, if the answer is in the affirmative, must the prosecution
disclose to the defence a statement for a report by that expert setting out the facts upon which
her or his opinion as to that range is based” [emphasis added.]
4.19 The Supreme Court considered the limited extent to which the samples had been analysed in so
far as the purity of the amphetamine had not been tested. It examined the use of the term “generally” to
describe the rate at which purity levels fell between 10 percent and 40 percent. In the absence of any
clarification as to what “generally” meant, the Supreme Court concluded that “generally” meant “probably”
and that probability was not enough to exclude the possibility that the percentage of amphetamine
present could have been as low as 1 percent. The Supreme Court thus set aside the conviction.
4.20 O’Malley commends the Supreme Court for having “reached the right decision ... for the right
reason”. 27 He notes, however, that:
“It is rather frightening in retrospect to realise that a conviction for a s.15A offence could be based
on the probability as opposed to the actuality of drug purity levels. It is all the more worrying in
circumstances where conviction carries either a presumptive or mandatory minimum sentence of
10 years’ imprisonment, a matter to which the Supreme Court rightly drew attention. The
25
26
27
O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 340.
The People (DPP) v Connolly [2011] IESC 6.
O’Malley “Further Observations on DPP v Connolly (Part 1 of 3)” 22 February 2011. Available at:
www.extempore.ie/2011/02/22/further-observations-on-dpp-v-connolly-part-1-of-3/ [Last accessed: 22 May
2013].
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