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Cite as:  2 IR 188,  IECCA 32
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Judgment Title: DPP -v- Paul Begley
Neutral Citation:  IECCA 32
Court of Criminal Appeal Record Number: 95/12
Date of Delivery: 22/01/2013
Court: Court of Criminal Appeal
Composition of Court: McKechnie J., de Valera J., McGovern J.
Judgment by: McKechnie J.
Status of Judgment: Approved
Outcome: Allow Appeal v Sentence
THE COURT OF CRIMINAL APPEAL
C.C.A. No. 95/12
DE VALERA J.
MC GOVERN J.
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
JUDGMENT of the Court delivered the Mr. Justice William M. McKechnie on the 22nd day of January, 2013.
1. On the 12th January, 2012 the appellant, on arraignment, entered a guilty plea on counts 1, 6, 10, and 11 of the indictment which was accepted by the Director of Public Prosecutions on a full facts basis. There were in all a further seven similar type offences alleged against him. Count no. 1 related to the attempted fraudulent evasion of customs duty, with all other counts being that of fraudulent evasion, contrary to s. 186 of the Customs Consolidation Act, 1876 as amended by s. 34 of the Finance Act, 1963, s. 177 of the Finance Act, 2001, s. 89 of the Finance Act, 1997, and s. 240 of the Finance Act, 2001. The supporting particulars were the same on all charges save for dates, weight of goods, and estimated value. Count no. 2 is representative of the conduct complained of. It reads:
3. The application for leave to appeal which stands before this Court relates to severity of sentence. Three essential grounds are relied upon, details of which are later set out in this judgment. By reference to the submissions offered in support of each of these grounds, it is asserted for a variety of reasons that in the circumstances the sentence was both inappropriate and excessive.
4. In the event of this Court finding that the imposed sentence was excessively severe, it has been asked to defer its decision on what the appropriate sentence should be, until the appellant has had an opportunity of making further submissions on that issue. As such a practice is provided for in the event of an error of principle having been established the Court will, if the occasion should arise, adjourn as so requested. See The People (D.P.P.) v. Cunningham  2 IR 712.
• On the 9th October 2007 a revenue officer at Dublin Port examined a container imported from China in the name of the company.
• According to the accompanying paperwork it should have contained 18 tonnes of apples and 2 tonnes of garlic.
• In fact the consignment consisted purely of garlic, being approximately 21 tonnes in weight.
• At that time, the customs duty on apples was 9% whereas that on garlic imported from third countries was 9.6% of the value plus €120 per 100 kilograms of garlic.
• Customs officers then looked back over previous consignments shipped to Begley Brothers Limited and found documentation referring to other mixed importations of apples and garlic.
• On the 10th October 2007 a search was carried out at the premises of the company on foot of a validly obtained search warrant.
• The appellant was present at the time of the search and acknowledged to the revenue officers involved, that he was responsible for all importations of garlic from China.
• He then provided:
- details of his contact with the suppliers and correspondence which passed between both of them; and
- a series of emails containing details of what was actually brought in as opposed to what was declared for the purposes of duty.
• The emails concerning these consignments of garlic covered a period from September 2006 to October 2007, approximately.
• The consignments referred to in the emails could be matched with customs declarations that had been made when the relevant consignments actually came into the country.
• On being questioned the appellant stated that he had first declared other commodities in place of garlic in 2003, which was also the year when the company had first applied for an import licence.
• Subsequent to the search, the appellant volunteered additional information, detailing shipments from China and otherwise provided much of the documentation which ultimately formed the book of evidence.
• The appellant co-operated fully with the investigation.
• Two years later, a further search under warrant was carried out at the warehouse premises of Begley Brothers Limited in Blanchardstown and full cooperation was likewise provided on that occasion.
• It was accepted by Revenue that the supplier in China had facilitated the operation by providing false documentation.
• As a result of the investigation it was considered that approximately 1,413 tonnes of garlic valued at €1.1 million were imported from China during the period in question. It was estimated that €1.6 million in duty was thus evaded.
• The value of the goods on the four counts to which pleas were entered was approximately €85,000:
- in respect of the first count the attempted evasion amounted to €35,352.02.
- in respect of the sixth count the attempted evasion amounted to €12,373.83.
- in respect of the tenth count the attempted evasion amounted to €18,309.92.
- in respect of the eleventh count the attempted evasion amounted to €19,324.94
• The appellant came to an arrangement with the Revenue to repay the sum of €1.6 million in instalments.
• The process of restitution was commenced with the payment of a lump sum of around €219,000 to Revenue in December 2009 with a payment schedule of €24,000 per month up to December 2011 and €33,000 per month thereafter being subsequently agreed upon.
• All payments to date have been made promptly and the outstanding balance is on course to be fully discharged within the agreed timeframe ending in November 2013. At the date of sentence there remained around €700,000 to be paid.
6. The learned trial judge referred with apparent acceptance, to some matters advanced in mitigation and having disregarded a submission that the rate of customs on garlic was arbitrary and unfair, as was alleged, holding that such was a matter for the Oireachtas, went on to highlight the gravity of the offences, which he said, with malice aforethought, were embarked upon by the appellant for the purposes of defrauding the Revenue, and in the process, the people of Ireland of their rightful taxes. He then continued:
Submissions of the Appellant:
Ground No. 1:
9. It is claimed that in view of the number of positive and favourable factors identified on behalf of the appellant, which the Court was inclined to accept, the particular sentence should have been much less severe than what it was. To impose the maximum sentence permitted on count no. 6, in circumstances where there has been a guilty plea was erroneous. A maximum sentence following a guilty plea should only be applied where there are unusual or exceptional circumstances by way of aggravation (see s.29 of the Criminal Justice Act 1999).
10. Cases where such sentences have been imposed constitute rare exceptions to the general practice (see DPP v. Duffy  2 I.R. 395 (“Duffy”), DPP v. Adams (Unreported, Court of Criminal Appeal, 21st December 2004) (“Adams”) and DPP v. Daniels (Unreported, Court of Criminal Appeal, 28th July 2006) (“Daniels”)). This case falls well short of reaching any kind of threshold which would justify such level of sanction. Furthermore, there is a duty on the trial court when imposing a maximum sentence to specify the type of circumstances giving rise to such decision and to explain how and in what way the presenting case meets the required criteria. There is no indication whatsoever in this regard in the ruling of the learned judge.
11. Support for the above propositions can be found in the cases of DPP v. Loving  3 IR 355 (“Loving”), and in DPP v. R.McC.  2 IR 92 (“R.McC.”).Whilst it is accepted that this Court has from time to time upheld the imposition of a mandatory sentence, even on a guilty plea, these occasions can be regarded as rare exceptions, such as to be found in the cases mentioned in the preceding paragraph.
12. It is a well settled aspect of sentencing principles that an early plea is more valuable than a later one, particularly if the accused person has cooperated, fully as in this case, with the investigation. Noting the resulting benefits to the Director of Public Prosecutions, it is claimed that this factor should have had an important mitigating influence on the actual sentence imposed. Evidently, no allowance was made for it. Consequently the sentence specified on count no. 6, with the addition of a consecutive element on count no. 10, represents an error of principle.
Ground No. 2:
14. The following passage from O’Malley was cited to support this suggested imbalance, when the trial judge was dealing with what otherwise is acknowledged as being a legitimate factor for consideration, namely deterrence. The author states:
15. It is further submitted that what the trial judge said in this regard, which is quoted at paras. 6 and 7 supra, shows at least to some extent, that he had bound himself to the principles of punishment and deterrence to the exclusion of personal circumstances. This is not permitted and therefore such an approach also constitutes an error of principle.
Ground No. 3:
17. It is claimed on behalf of the appellant that it is a well-established principle that the sentence must be proportionate to the circumstances of the offence and the offender. DPP v. McCormack  3 I.R. 356 is but one of many cases which establishes this point. Lack of consideration of the factors involved is a significant departure from case law (see DPP v. M  3 I.R. 306 (“M”) and DPP v. Kelly  2 IR 321 (“Kelly”)), and merits appellate intervention.
18. In conclusion, it is asserted that on any one or more of these grounds, the appeal should be allowed.
The Response of the Director of Public Prosecutions:
20. O’Malley was again cited to support the general thrust of this point. At para. 14.10 it is stated:
22. It is said by the Director of Public Prosecutions that where an offence takes place repeatedly over an extended period of time it is impossible to view the offender as of “good character” and the behaviour as being “out of character” (see DPP v. Duffy  3 IR 613, “the Citroen cartel case”). In this case therefore, this factor, which is usually a mitigating one, must not be given any considerable weight.
23. In further response, the Director of Public Prosecutions, whilst acknowledging that there was “…some merit to the criticisms of the … judge’s approach and the manner in which he structured the sentence…”, nonetheless went on to urge:
(ii) that given the seriousness of the offences a cumulative sentence of six years was warranted;
(iii) that as the offences took place over many years, this is not a one transaction case for the purposes of sentence; and
(iv) that the essential issue for the appellate court was to determine whether or not the sentence of six years was disproportionate.
25. Finally it was stated that in cases of offences involving the public purse deterrence plays an important value in the sentencing process and that in recent years there has been a pronounced trend towards the imposition of substantial custodial sentences for revenue offences of all kind. Therefore the overall sentence can be stood over.
Mitigating Matters Considered:
27. The following matters were identified in the submissions, as being referable to the appellant or his circumstances and were, as part of their elaboration, spoken at different times and in a variety of ways:
• that he was good and generous man whose deeds include helping the homeless;
• that he is an asset to his family and an asset to the country;
• that he was instrumental in overseeing a major development of the family business;
• the absence of any previous convictions;
• the unlikelihood of any re-offending with full rehabilitation having been achieved;
• that the idea in the first instance for the evasion, had originated with the Chinese suppliers; and
• that of his full cooperation with the Revenue when the offences were uncovered.
• his good standing with the Revenue apart from this offence;
• his immediate guilty plea in the District Court, and his later plea in the Circuit Criminal Court;
• his remorse demonstrated by the early plea and restitution; and
• the consequential disqualification of five years which followed conviction.
29. The essential principles of sentencing law are firmly established as part of our criminal jurisprudence and have been consistently applied, as a matter of course, for many years. At the level of generality it can be said that all sentences will result from a consideration of the gravity of the offence and of the circumstances in which it has been committed: from an appraisal of the personal situation of the accused person and from the assignment, to all mitigating factors, of a fitting value. Such an exercise should result in the sentence being proportionate to the crime and the person: if the result is otherwise, it must be adjusted so that at the end of the process an appropriate sentence is imposed.
30. There are many elements involved in sentencing both at a general and specific level. Each has its own justifying reason. Some evidently are more influential than others: some may apply in isolation whilst others are best suited to have a cumulative effect. Not all will arise in any given case but all are part of an overall armoury, designed to deal with a multitude of different circumstances, relative to both crime and criminal, which when properly used, will result in the imposition of a just sentence in all circumstances.
31. A judgment of some importance in this regard, which expressly directed the Court’s attention, not only to the crime but also to the offender, is that of Walsh J. in The People (Attorney General) v. O’Driscoll  1 Frewen 351 where it was stated at p.359:
33. Consequently, the general position is not in doubt; therefore these guiding principles will permeate the views of all courts when passing sentence on convicted persons.
34. When called upon to apply such principles, the following passage from the judgment of Kearns J. when speaking for the Court in R. McC. succinctly captures what is the preferred if not the only approach in this regard:
36. Finally, in a general context, it is also appropriate to make reference to what was said in the M at p.315 where Egan J. said:
37. It has not been suggested by the Director of Public Prosecutions that cases involving tax evasion such as that presenting before this Court, should be categorised separately from other offences for sentencing purposes. However, reference has been made to the Murray case which might give the impression that this is so. In that case, on a guilty plea and following immediate admissions on arrest, the accused person received a 3 year sentence on count no. 1, of falsely obtaining a passport, and 6 months on count no. 2, concurrent with 24 further sentences of 6 months on each of the remaining sample counts, all to run consecutive to each other and concurrent to the three year sentence. In all he received twelve and a half years imprisonment. Nothing turns on the passport sentence but it was claimed that the remaining sentences were grossly excessive and thus, that the trial court had erred in principle.
38. This was a case of social welfare fraud which lasted several years and involved an elaborate and sophisticated scheme which resulted in the fraudulent misappropriation of about €250,000 through diverse claims. The appellant, though Irish, lived in Thailand and travelled to this jurisdiction specifically for the purpose of committing these offences. When arrested and as the investigation unfolded, false social welfare cards, bus passes, medical cards, and a number of false British driving licences, all purchased on the black market in Thailand were found and much more besides. Part of the scheme involved the appellant in identifying persons whom he knew had emigrated permanently from Ireland and in obtaining details of their birth dates and other relevant information, such as their mother’s maiden name. Armed as such he would then go to the office of the Registrar of Births, Marriages and Deaths and on the payment of a small fee obtain a copy of the birth certificate for that individual. These were then presented to the Department of Social Protection, which of course immediately lent an air of credibility to the applications subsequently made in the names of such persons. In addition, whilst he himself had a genuine disability in his right arm, he exploited this by going to three different medical practitioners, using three different aliases and procured three different medical certificates, all of which were then used to obtain three different disability claims. In short, the lengths to which the appellant went to in order to perpetrate this deception were quite staggering.
39. In the Court’s judgment, Finnegan J. reviewed the rationale behind the sentencing policy relative to different types of offences, such as those committed against the person involving for example, an interference with one’s dignity or a violation of one’s integrity, and against a person’s property, including one’s home, being either attended by violence or other aggravating factors or not. Reference was made to crimes involving the loss of public revenue which the judge said may well be viewed much more seriously today than previously given “[the] enormous demands on the public purse [caused by] the associated banking collapse and a continuing structural public deficit” (para. 18). Having acknowledged how the Irish people have “stoically endured significant taxation increases, reductions in social security payments, and retrenchment at all levels in the provision of social services, as the State endeavours to restore an equilibrium in the public finances” (para.18), the learned judge identified tax evasion as a major threat to social solidarity, which if allowed to become widespread could affect the fabric of society as we know it. “[D]eterrence” which he described as a “necessary quid pro quo of social solidarity” was an important consideration in this regard as was “some element of severity”, so as to ensure that rightful contributions made by law abiding citizens, will continue to be made to public funds, from which social welfare and other payments are defrayed (para.21).
40. The Court then took the unusual step of suggesting “for the future guidance of sentencing courts”, that systematic frauds, whether illegal tax evasion or social welfare fraud, or presumably otherwise affecting the public revenue “should generally meet with an immediate and appreciable custodial sentence”. Ultimately in that particular case the Court of Criminal Appeal allowed the appeal and substituted for that imposed, a sentence of nine years with one suspended (para. 22).
41. There is no doubt but that much of what is said in the Murray judgment is correct and that sentences for particular offences may be viewed either with greater or lesser severity, depending inter alia on the period within which they are committed and the circumstances prevailing at that time. However, it is most unlikely, even allowing for the narrow circumstances by which it is suggested that an immediate custodial sentence may be appropriate, that the Court was offering guidelines of a general nature in this regard, for to have done so would surely have breached what the Supreme Court said in The People (Director of Public Prosecutions) v. Tiernan  I.R. 250 (“Tiernan”), and further would likewise have been in conflict with several other decisions subsequently given, to similar effect.
42. At p. 254 of the Tiernan judgment Chief Justice Finlay, with whom three other members of the Court agreed, firmly rejected any question of guidelines, stating:
43. Although the Court in Tiernan offered the view that a substantial and immediate custodial sentence would usually be justified in cases such as rape, this statement was made in the context that the same would result from the correct application of general sentencing principles. In effect, the principles in question would give rise to and produce such a sentence. That of course is an entirely different matter than suggesting that a particular sentence should follow, purely or essentially, from the nature of crime itself. Such would be some form of prescriptive sentencing which is not part of current law. The true position we think is that there will be some cases where an immediate sentence is justified and others where it will not be. Everything will depend on the crime, the circumstances of its commission and the personal situation of the accused. In all cases however the ultimate conclusion will be directed by general principles.
44. It therefore seems to this Court that the judgment should not be read as suggesting the establishment of any parallel rules on sentencing, relative to such crimes or as contemplating any significant adjustment on how courts should value or weigh genuine factors in mitigation. In many respects this is unsurprising, as within the existing structure of sentencing, there is sufficient flexibility to deal with any changing circumstances or context, whatever the range may be. Therefore, whilst noting the importance of the decision for its underlying analysis, it does not appear to this Court that the same either intended to, or in fact created, any substantial departure from the existing principles and how such are applied. This is confirmed, at least in part, by the judgment itself when the learned judge, immediately after the passage quoted at para. 40 above continued:
47. In many respects the rationale behind Murray can be seen as contextual and when viewed in that light, has a direct parallel with the raison d’être of the decision of the Central Criminal Court in the Citroen cartel case, in the context of competition cases.
48. Prior to the Citroen cartel case, and certainly prior to DPP v. Manning (Central Criminal Court, McKechnie J., 9th February, 2007) (“Manning”), there was no case in this jurisdiction, on the criminal side, which outlined the history of anti-competition practices, particularly as demonstrated by cartel activity. This may have given rise, or at least may have contributed to, the fact that courts were markedly reluctant to impose jail sentences, even in quite serious cases. The Citroen cartel case sought to address this omission by giving a context to such criminal behaviour. In this regard, the Court cited a passage from the judgment in Manning at para. 23:
52. Experience has shown that conduct giving rise to any particular offence, indeed all offences, can in terms of seriousness or gravity, vary greatly, as can the attendant level of culpability or degree of delinquency involved. Similar variations apply to the convicted person and the personal position of the convict. Evidently, it cannot be said that one sentence fits all or that a penalty in excess of the maximum can be prescribed. Therefore, a vast array of activity, capable of constituting the offence and multiple circumstance variation relative to the offender, must be accommodated within the sentence range as provided for.
53. This situation of course is well known to, and within the contemplation of, the Oireachtas, which is presumed to desire that an appropriate sentence will be passed on a person guilty of a particular offence. This inevitably means that the maximum sentence allowable is intended only to reflect “the highest level of seriousness capable of being envisaged for that offence, both as to its intrinsic quality and as to the circumstances in which it was committed” (Loving at pp. 365 and 366). One may add, for the sake of clarity, the individual circumstances of the offender. The sentencing court must be satisfied that notwithstanding the personal circumstances of the accused and despite appropriately weighting any and all matters of mitigation as offered, the offence in question, by reason of its inherent nature and the attendant circumstances of its commission is such, as would within the contemplation of the Oireachtas, be positioned at such point on the scale for that offence as would demand the maximum sentence. Therefore, before a maximum sentence should be imposed, the court has to be satisfied that this threshold has been met.
Section 29 of the Criminal Justice Act 1999:
56. However, this is not to say that a court, even with a guilty plea cannot impose a maximum sentence in “rare and exceptional” cases. It can and always could, with s. 29(2) of the 1999 Act being purely declaratory is this regard. Before doing so however it must consider all of the mitigating factors and give each one its due and proper weight. Having so stated, Kearns J. continued (para. 35):
58. As appears from the judge’s ruling, summarised at paras. 6 and 7 supra, it seems that whilst he noted some of the mitigating factors which were advanced in the case, his repeated reference to the twin pillars upon which he was sentencing Mr. Begley, namely punishment and deterrence, gives a strong impression that he disregarded or otherwise overlooked such factors when determining the actual sentence ultimately imposed. Such, would of course amount to a clear error of principle.
59. In his sentencing ruling in Perry the same judge used the same type of language as he did in the instant case saying:
61. Lest however that to allow the appeal on this basis the Court should have misinterpreted the judge’s position, it proposes to proceed as if in fact he had considered such matters, although this is highly problematic (paras. 6 and 7 supra). Even so, it must immediately be seen that consideration, without effect and without explanation, is of no value. Even, therefore, if such had occurred it must be, on the facts of the case, that he misdirected himself as a matter of law. This must inevitably follow, as if he had correctly given credit for what was urged, he could not have arrived at the sentence which he did.
62. There is no doubt but that these are very serious offences which lasted over a period of time and which were carried out with premeditation and executed with and after careful planning. Personal gain for himself and his family were the core motives involved with both competitors and the public alike suffering as a result. Therefore it is quite correct and highly proper to regard such offences in such light. In addition, there is nothing defective in basing a sentence on punishment and general deterrence. In fact, the latter is particularly appropriate to crimes of this nature. However, to so base the decision purely on these grounds, to the exclusion, if not intentionally, then certainly effectively, of the mitigating factors must be equated with an error of principle and this Court so holds.
63. In imposing the maximum sentence on count no. 6, the judge failed to give any explanation as to why he considered the circumstances of the case as falling within the highest range of conduct possible for this type of offence. Again he offers no reasons for concluding that the case gave rise to “rare and exceptional circumstances”, which would justify that sentence. Such is an essential requirement, according to Kearns J. in R. McC., when a trial court proposes to take such a step. Secondly, in effect he was making a representation that the gravity of the offence could not be surpassed by other circumstances and by other individuals giving rise to the same offence. That simply could not be correct. Evidently, for example, the frauds could have been perpetrated over a longer period and could have involved misappropriation at a much higher level. Even leaving such considerations entirely aside however, and simply concentrating on the mitigating factors, it is easily conceivable that another individual guilty of the same offence could not draw on or call in aid the multiple factors which exist in favour of Mr. Begley. What sentence would be imposed if these matters were not present? Evidently, it could not have been greater and if it was, similarly, surely, “equality”, a principle of sentencing, would have been breached.
The Admission and Cooperation:
The Plea of Guilty:
66. The Court is not at all sure that these facts can be interpreted in the manner suggested by the Director of Public Prosecutions. It is clear from the outset that as a result of the level of cooperation given, the extent of the documentation produced and the admissions made, that a plea was always likely. On a careful reading of that discovery application, its purpose is also consistent with Mr. Begley seeking clarification of precisely what documentation other than that supplied by him, might form the basis of further charges against him. When it became clear, following that application, that the content of the book was based on his documentation, the controversy seems to have subsided. In such circumstances, it was not unreasonable to further consider his overall position once the Director of Public Prosecutions’ direction became clear, particularly noting that the prosecution had, in the first place, commenced with the issue of summonses.
67. As events transpired, there was a plea entered, not simply a few days before trial but on the 21st December 2011. However so characterised, it had the resulting advantage of a potentially long and protracted trial being avoided and thus time and expenditure being saved. Even however allowing for some uncertainty arising out of the matters above mentioned, it must nonetheless be that, in the circumstances, when read in conjunction with the admissions and cooperation, the plea has to merit serious consideration.
69. It is accepted that genuine remorse has been demonstrated by Mr. Begley.
70. An impressive list of testimonials was handed in, including one from a direct competitor.
71. The appellant has no previous convictions, is, according to the trial judge totally rehabilitated and is a person unlikely ever to re-offend. Whilst it is not uncommon to find that those convicted of tax fraud will be in a similar position and therefore credit in this regard may not be as high as in other cases, nevertheless it goes without saying that such matters simply cannot be stood down or ignored.
72. In view of these factors, it was not open to the trial judge, as a matter of law, to impose the sentence which he did. As stated, either such were entirely overlooked, or if regard was had to any one or more of them, such was not appropriately or properly valued. In these circumstances, this Court is satisfied that an error of principle exists, and thus the sentence must be set aside. It follows from the above that likewise, the sentence cannot be said to be proportionate, in the sense in which that term is used in this context, namely appropriate to both crime and criminal. For that reason also it cannot stand.
73. The Court in accordance with the procedure laid down in The People (D.P.P.) v. Cunningham  2 IR 712 will now move to the second phase of this process which involves hearing submissions from both parties, after which the Court will itself specify what the appropriate sentence should be. Such task will be undertaken by reference to the sentencing principles above outlined.
74. Further submissions were made on the 4th February, 2013: however, the additional matters offered do not add anything of substance to what was already before the Court, the most important features of which have previously been noted.
75. There cannot be any doubt but that the charges in question are serious and constitute a significant infringement of the criminal law. This is equally so as regards the manner of their commission, being well and carefully planned, even if in-depth sophistication was not required. They were carried out at different times over a prolonged period, one occurring in 2003, five in 2004, two in 2006 and three in 2007. Their execution involved premeditated acts of deception with the motive of the convict being that to advance himself and his company. Given such, it is impossible to say that these were out of character, in the sense that on each occasion of criminality the appellant had a full insight into what his intentions were and undoubtedly must have appreciated the wrongdoing of his conduct. Therefore, the offences are both notable and significant in nature. Moreover, given the circumstances in which they were perpetrated, there is no doubt but that an element or aspect of general deterrence is appropriate so as to demonstrate the consequences of this type of behaviour.
76. In this context reference should be made to the evidence of Professor Caoimhin Mac Maoláin from the school of law, Trinity College, which dealt with “the rates of tariffs and quotas on the importation of garlic into Ireland and other European Union Member States”. In that report inter alia he outlines the following:
(ii) under Regulation No. 2658/1987 the rate on garlic was set at 12%, with no additional tonnage charge for exceeding a quota. This was the same rate as applied to other similar foods such as shallots and onions;
(iii) in 2001 both the basis for the charge and the rate itself, on garlic imported into EU Member States from China, was changed, as it has been on a number of occasions since then;
(iv) at present the applicable Commission Regulation is (EU) No. 1006/2011 of the 27 September, 2011 amending Annex I to Council Regulation (EEC) no 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, O.J. L 282 28.10.2011 by which the duty charged on the importation of garlic into Ireland from third countries is set. Currently, the rate is 9.6% on the first 58,870 tonnes imported across the EU. Out of this figure the Regulation provides that up to 33,700 tonnes may be imported from China at this preferential duty rate;
(v) the charge then increases to 9.6% plus €120 per 100 kilo net, on any importation from China, which exceeds the tonnage last mentioned;
(vi) as applied to the Begley imports, the actual rate varied with most if not all consignments: the value of such goods stood at 232% in July 2003; 217% in August 2004; 170% in October 2007 and 138% in November 2006. Therefore, whilst the range is considerable, the effective rate, according to the evidence, “is often … around the 200% mark”;
(vii) this compares with the charge currently imposed on what are described as “comparable products”, such as shallots and onions, which is 9.6% with no additional charge for quantity: this can result in a saving of up to twenty four times that paid for garlic;
(viii) in the opinion of the witness the tariff quota system and the resultant rates for garlic imports are “highly punitive” and are “without question”, in his experience, quite unlike any other charge which he has come across in the field of international trade in food; and finally
(ix) he finds it difficult to outline an understandable basis for either the approach or the charge.
78. The essential reason for the Court’s earlier ruling was that the sentence imposed was excessive, by reason of a failure by the trial judge to either properly consider or to appropriately weigh the individual mitigating factors which undoubtedly exist, and in respect of which Mr. Begley was entitled to credit. Before again addressing these matters however, reference should be made to other Revenue cases, although what real benefit will emerge from this exercise remains questionable as, save for very few in number, the information available on such cases is quite sparse and in many respects lacks critical detail regarding matters such as pleas, restitution, previous convictions, personal circumstances, etc.. However, some brief comment may be appropriate.
79. On the Revenue website, in its archives, there is a list of cases from 2005 to 2012 involving the prosecution of many individuals and companies for Revenue offences, as broadly understood. As one might expect, at least in some instances, there is considerable diversity in the sentences ultimately imposed.
80. From the year 2012 the following can be noted:
(ii) A Mr. Floyd was convicted, after trial, of twenty-seven counts of knowingly or wilfully claiming VAT repayments to which he was not entitled and of delivering incorrect VAT returns, all being perpetrated through a bogus VAT scheme. One source puts the repayments claimed at just short of €700,000, whereas according to contemporaneous newspaper reports there was almost €7 million of loss to the State through VAT payments of €1.6 million and €5.25 million in relevant “contract tax”. He received a consecutive sentence of three years on two counts with the final year suspended. As is immediately evident the information available is either somewhat contradictory or not properly contextualised. Further, neither his antecedents nor personal circumstances are known: it is however clear that there was no plea and it is likely that no restitution was offered.
(iii) In the joint cases of Dunne and Wynne, the former pleaded guilty to six counts of submitting incorrect VAT returns and an incorrect P 35 return, of furnishing incorrect information and of failing to comply with the provisions of the Acts requiring the keeping of books, records and other documents for the purposes of tax. The total amount involved was about €330,000. He was sentenced to three years in prison with one suspended. No other details are available to this Court on the case but a bit more information is, on the position of his co-accused;
(iv) Mr. Wynne, the co-accused, and a director of Loganroy Consultants Ltd. (in liquidation), pleaded guilty to ten sample charges out of a total of thirty, of knowingly delivering incorrect VAT returns over a four year period and of knowingly producing incorrect VAT invoices. Again, according to contemporaneous newspaper reports, a total of 324 invoices were transferred to a fake company, amounting to over €4 million in income. It is reported that Mr. Wynne owed €1.67 million to the Revenue, including back taxes and interests. He had collected and offered €30,000 by the date of trial. On a plea, he was sentenced to three years with one suspended on several of the charges, all to run concurrently.
81. As can be seen, the level of detail is simply not there to discern any pattern to the sentences imposed. Moreover, many matters which may, or for that matter may not, have been urged, are unknown. Therefore, in such circumstances it would be quite unsafe to deduce anything of relevance for the purposes of this appeal.
82. There are however two written decision where much more is said about the facts: one is Murray and the other is Hughes. It will be recalled that Mr. Murray pleaded guilty to a passport offence and to twenty-five sample counts of social welfare fraud (paras. 37 & 38 supra). The scheme underlying those offences was elaborate, sophisticated, devious and meticulous in both its planning and execution. It involved the creation of multiple false documents, including many of a public nature and the indiscriminate use of false names. The fraud had continued for about four years, during which time the appellant travelled every three months from his then home in Thailand to commit these offences. The loss to the State was about €240,000, described as the biggest fraud of its kind at the time. On the credit side, he pleaded guilty and cooperated when arrested. He was sentenced to three years for the passport offence which was not in issue. His overall twelve-and-a-half year sentence was ultimately reduced to one of nine years in the Court of Criminal Appeal.
83. From a full reading of the case it is clear that there was in place a complex, elaborate and intricate scheme, carried out over many years, involving gross breaches of trust, by the use of falsely created public documents, including passports, driving licences, birth certificates, social welfare cards, etc., with the perpetrator displaying a level of culpability and deviousness which rightly so has been described as being on an “extraordinary scale”. The facts of such case are therefore totally unlike those presenting in the present appeal. Finally it should be also noted that the vast majority of the charges which Mr. Murray faced carried a ten year sentence unlike that in this case.
84. The case which is probably most useful to this Court is that of Hughes, again above mentioned. Mr. Hughes pleaded guilty to six counts of failing to make VAT payments and to submit appropriate returns. He was sentenced to four years in the trial Court on each of these charges, all to run concurrently. The period of offending was between July 2003 and February 2006 and involved the fraudulent use of a VAT number, from a company which had not traded since 2002. By such use, motor vehicles were imported from the United Kingdom into this country. As stated, neither returns nor payments were made. The total VAT avoided was about €225,000, which by trial date had been repaid with a further €50,000 being available in relation to his overall liability in this regard. It was unclear however, at that time, precisely what further amounts remained to be discharged as the matter was still pending before the Appeals Commissioners.
85. In addition to VAT, however, he was also significantly in default in terms of Income Tax and C.G.T. in respect of which he was levied a sum of almost €800,000 by the Revenue. At the date of trial he had paid about €680,000 of this amount. In order to meet these commitments he had sold his house in France, downgraded his Irish house and made real efforts to deal with the financial situation. He was married, a father of two, had no previous convictions and was of good character with strong testimonials given to the Court. On appeal the C.C.A., “[t]aking account of his very extensive settlements and cooperation with the Revenue, the destructive effects on his life, his plea of guilty, his rehabilitation and the other mitigating factors”, reduced the ultimate sentence to one of two years.
86. Evidently, the facts in Hughes are not on all four with the facts in this case. There are however a number of similarities and with some of the differences also capable of being relevant, by adjustment, the views of the C.C.A. can offer some guidance to this Court. Such level of application however cannot be overstated as, amongst other matters, Mr. Hughes was grossly non-compliant in his tax affairs even those unrelated to this scheme, whereas Mr. Begley was not. Secondly, the benefit to the Revenue of the instant appellant’s cooperation may have been greater. There are of course also some other points of difference. Nonetheless, on the information available, it affords the most comparable set of circumstances to the instant case.
87. Regarding mitigation, it is not necessary to repeat those factors of relevance as the same are fully outlined at paras. 27 & 28 supra. It is sufficient to recall those which merit the most favourable consideration being the immediate and extensive cooperation offered to the Revenue Commissioners: the identification and supply of documentation which otherwise may never have surfaced and which for all practical purposes constituted the book of evidence; the restitution programme entered into and in accordance with its terms performed several months prior to the institution of criminal proceedings; the admission of guilt, followed by what the Court is satisfied was a plea at the earliest reasonable time, thereby avoiding a prosecution which could have had some technical issues; the expressions of remorse tangibly demonstrated; the absence of previous conviction and his personal circumstances. It is also of note that the value of the goods on the indictment to which he pleaded guilty was about €86,000, whilst the value of the goods in the entire indictment was about €300,000. In all, the revenue lost in terms of duty was less than the figure last mentioned. These and the other matters above mentioned must therefore be reflected in the sentence to be imposed.
88. By reason of these circumstances and in order to reflect the gravity of the offences in question and the circumstances of their commission, but crediting the appellant with due and apposite weight for the very significant mitigating features, this Court is of the view that, the appropriate sentence should be one of two years.