Judge erred in sentencing man to 30 years for smuggling drugs
A Cork judge erred in sentencing an Englishman to 30 years imprisonment for his role in the biggest drugs seizure in the history of the State, the Court of Criminal Appeal has found.
Perry Wharrie (56), from Loughton, in Essex was given what his lawyers described as the “highest sentence in the history of the State” for his role in the record €440 million drugs haul which went awry at Dunlough Bay on the Mizen Peninsula, West Cork on July 2 2007.
Wharrie, who had pleaded not guilty to possession of the drugs for sale or supply, was unanimously found guilty by a Cork Circuit Criminal Court jury and sentenced to 30 years imprisonment by Judge Seán Ó Donnabháin on July 23 2008.
Two of Wharrie's accomplices, who also pleaded not guilty, were sentenced to 30 years and 25 years respectively for the same offence. A fourth accomplice who pleaded guilty was jailed for ten years.
The case began when a rigid inflatable boat carrying 1.5 tonnes of cocaine got into difficulties off the south-west coast. One of its petrol engines was filled with diesel, causing the craft to flounder and sink in unseasonably rough July seas.
The cocaine had been transferred to the RIB from a Catamaran named “Lucky day” after a rendezvous at a buoy 30 miles off the Cork Coast.
Life boat crews who came to the aid of the sinking RIB found one of Wharrie's accomplices floating in the sea encircled by 65 bales of cocaine, which was subsequently found to be 75 per cent pure.
There was evidence at the trial that customs officials who went to Dunlough Bay came across Wharrie and another accomplice making their way up from the cliffs. Both men were arrested two days later.
Speaking on behalf of the three-judge Court of Criminal Appeal yesterday Mr Justice John McMenamin said that in imposing the 30-year sentence on Wharrie “the judge fell into error”.
Mr Justice McMenamin, who sat with Mr Justice Michael Moriarty and Mr Justice Tony Hunt, said the court felt it necessary to indicate its decision following the appeal hearing and the next step was to allow Wharrie the opportunity to tender evidence for a fresh sentence hearing possibly in October.
Reasons for the court's decision will be furnished at a later date.
Counsel for Wharrie, Michael O'Higgins SC, said his side had not been able to uncover a term of imprisonment “even comparable” to his client's 30-year sentence.
Mr O'Higgins said the average life sentence in Ireland was presently 17-and-a-half years.
Wharrie had been in West Cork as “logistical support” for the intended importation of the drugs but he was not a leader in the venture, Mr O'Higgins said.
John Gilligan, whose 28 year sentence was reduced to 20 on appeal, was extradited to Ireland on charges involving the “weekly” importation of cannabis, Mr O'Higgins said, with profits measured at “18.9 million” pounds or euro.
It was “inconceivable that somebody could get 10 years more than Mr Gilligan,” Mr O'Higgins said, “who was not just running the enterprise but extracting massive profits from it” also.
He said Wharrie's case raised a number of “disturbing questions”.
There was “no humanity”, “no light at the end of the tunnel” and “no assessment” of Wharrie's “particular circumstances” in the sentence, Mr O'Higgins said.
At what point does a sentence cease to be an individuated measure of punishment and cross the line to become an “instrument of oppresion,” he asked.
Mr O'Higgins said seven people had now been sentenced by two different Cork Circuit Criminal Court judges in respect of “hundreds of millions” of euro worth of drugs.
Three of them each got 10 years while two others got eight years each.
How was it that seven people got 10 year sentences and the men who pleaded not guilty and went to trial got 25 and 30 years each, Mr O'Higgins asked.
Counsel said he was not submitting that Wharrie should get 10 years but the “daylight between 10 and 30 is not sustainable”.
Those seven sentences showed a “very clear” and “disturbing pattern”, Mr O'Higgins said, and the Director of Public Prosecutions had not appealed any of them.
The sentencing judge took the view, Mr O'Higgins said, that because of Wharrie's “antecedent history” including a conviction for his role in the murder of a policeman in the UK, he was not entitled to any mitigation.
Mr O'Higgins said Wharrie had been involved in an armed robbery of a Securicor van when an off-duty policeman was shot dead but Wharrie was not “the person who pulled the trigger”.
Wharrie was freed on licence in 2005 having served 17 years for the officer's murder. He will be extradited to the UK to serve the balance of the life term at the expiration of his sentence here.
A new sentencing hearing is expected to take place in the second week of October 2015.