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'undue leniency' Court almost doubles sentence of drug packager already released from prison

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(Stock image)

(Stock image)

(Stock image)

An addict hired to package millions of euro worth of heroin and cannabis in a "large scale drugs distribution hub" will be returned to jail after the Court of Appeal increased his sentence by four years.

The court would have increased it by more, but decided that this would be particularly harsh, given that the culprit had already been released from prison and resumed normal family life and found a job by the time of the appeal.

The increase in sentence came after the three judges agreed with the DPP that Mark O'Dwyer’s five-year sentence was unduly lenient.

The 46-year-old of Emmet Buildings, Watling Street, Dublin, had pleaded guilty at Dublin Circuit Criminal Court to possession of the drugs for sale or supply at an address on Ballyfermot Drive, on July 17, 2017. Judge Martin Nolan imposed the five-year sentence in July 2018.

The cannabis and heroin had a value of €4,170,932, and the scene was described by Gardaí as ‘a large scale drug distribution hub’.

O’Dwyer, who had 41 previous convictions, had also pleaded guilty to three charges of possessing stun guns on the same occasion.

The father-of-one and his co-accused had been spotted transferring boxes of cannabis from a large lorry into a garage in the estate.

Gardaí moved in, and said they were ‘practically tripping over stuff’ when they discovered almost 200 KGs of drugs, a money counting machine, two plastic bag sealers, three stun guns and a weighing scales, along with ‘an overpowering smell of cannabis herb’.

O'Dwyer had been recruited on the day with the promise of €1,500, which never materialised.

The other man, Stephen Sarsfield (41) of New Street Gardens in Dublin, pleaded guilty to the same offence and had previously been jailed for seven years by the same judge, who later sentenced O’Dwyer. Sarsfield’s sentence was last year increased by three years by the Court of Appeal.

The DPP appealed the ‘undue leniency’ of O'Dwyer’s sentence in October, using Sarsfield’s case as a comparator.

Rónán Prendergast BL noted that Sarsfield’s seven-year sentence had now been determined to be unduly lenient.

He said that the sentencing judge had also erred in imposing O’Dwyer’s five-year sentence, which was ‘a substantial departure from the sentencing norms’, and in granting an excessive reduction from the prescriptive mandatory minimum sentence of 10 years.

Michael O’Higgins SC, representing O’Dwyer, informed the court that his client was currently on temporary release from prison as he was approaching the end of his sentence and was deemed suitable. However, he had turned up in court, he noted.

He complained that the State had taken two and a half years to bring this appeal to court.

Referring to his client and Sarsfield, he said they were ‘horses of different colours’.

He said that O’Dwyer’s mother had died at 25 from a heroin addiction. He had been described as ‘an outstanding athlete’ in his youth. However, he had succumbed to his own drug addiction for which he has been on a methadone programme for almost 20 years.

Counsel explained that O’Dwyer had ‘significantly impaired intellectual functioning’. However, he had worked all of his life and he had a job offer to show to the court.

“It’s our submission he was exploited on the day,” he said.

Justice Úna Ní Raifeartaigh, who sat with Justice John Edwards (presiding) and Justice Patrick McCarthy, delivered judgment today (Thursday).

She said that the court was of the view that a sentence of about 12 years would be appropriate. However, the court noted an exceptional circumstance, which justified a reduction, she said. This was the fact that O’Dwyer had already been released from prison.

“He appears to have resumed normal life with his partner and child and has resumed working,” noted the court. “There would be a particular harshness, in the court’s view, if he were not only returned to prison at this stage (as he will be) but also to serve the balance of the full sentence.”

The court therefore reduced the sentence to nine years which, it said, also maintained the differentiation between O’Dwyer and Sarsfield which ‘the very experienced trial judge had sought to put in place’.

“The position would be different if the appeal had been brought to hearing earlier,” it added. “This is a point of which the DPP might well take note for the future.”


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