"Exceptionally good person" jailed for gun and drugs possession which he was "minding"
An “exceptionally good person” jailed for possession of a revolver and drugs worth €150,000 which he was “minding” for others, faces an increased prison sentence following an appeal by prosecutors.
Mark Kavanagh (39), of Buirg An Rí Glen, Balgaddy, Clondalkin pleaded guilty at Dublin Circuit Criminal Court to possession of cocaine worth €135k and cannabis worth €18k at his home on April 2 2013.
He also admitted possession of a firearm, an offence which was taken into account by the sentencing judge Judge Martin Nolan when he sentenced Kavanagh to three-and-a-half years imprisonment on October 15 2014.
The Director of Public Prosecutions successfully appealed his sentence today on grounds that it was unduly lenient and Kavanagh faces the imposition of a new sentence next month.
Counsel for the DPP, Diarmuid Collins Bl, submitted that the trial judge had too much regard to the mitigating factors and too little regard to the aggravating factors present in the case.
Mr Collins said the sentencing judge didn't seem to have appropriate regard to the discovery of a notebook with coded entries related to the movement of drugs. The discovery of the notebook would “put someone higher up” the chain than a mere courier, he said.
Mr Collins further submitted that the judge chose not to impose a sentence in respect of the firearm but took the offence “into account”. That could only have been with the consent of the DPP, he said.
Counsel for Kavanagh, Dominic McGinn SC, said it was submitted to the sentencing judge that the notebook was not evidence of dealing.
The gardaí had information that Kavanagh was "minding" the drugs, Mr McGinn said, which he had held for a very short period of time.
Counsel cited remarks made earlier by Mr Justice Garrett Sheehan that Kavanagh was an “exceptionally good person”.
The level of support he gave to his wife and family in particular circumstances “went above and beyond” what would be expected of a normal father, Mr Justice Sheehan remarked.
Although not detailed in open court, Mr McGinn said there were a significant number of difficulties experienced by the family, the affects of which “would be indescribeable”.
If the DPP had a difficulty with the firearms offence being taken into account, rather than receiving its own sentence, Mr McGinn said the Director should have raised that difficulty in the sentencing court.
It could be described as a tactical decision to not raise the concern at the time, Mr McGinn said and there was no real reason for the Director not to have raised it at the time.
Given the “blatant unfairness” of the DPP's attitude, the grounds of the appeal were flawed, Mr McGinn said.
Finding in favour of the DPP, Mr Justice Michael Peart said the three-and-a-half year sentence did not reflect the seriousness of the offence and was “unduly lenient”.
Mr Justice Peart, who sat with Mr Justice Garrett Sheehan and Mr Justice Alan Mahon, said the court would impose a new sentence on Kavanagh next month.