Director of Public Prosecutions v Morgan

JurisdictionIreland
JudgeMr. Justice Hedigan
Judgment Date31 July 2018
Neutral Citation[2018] IECA 282
Docket Number174/2013
CourtCourt of Appeal (Ireland)
Date31 July 2018

[2018] IECA 282

THE COURT OF APPEAL

Hedigan J.

The President

Edwards J.

Hedigan J.

Birmingham J.

174/2013

BETWEEN
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
AND
MARTIN MORGAN
APPELLANT

Confiscation order – Managing a brothel – Organising prostitution – Appellant seeking to appeal against confiscation order – Whether the trial judge erred in law and in fact in determining that the sum of €252,980 might be realised at the time the confiscation order was made

Facts: The appellant, Mr Morgan, on the 22nd of February 2008, was convicted by a jury of managing a brothel and organising prostitution, contrary to s. 11(a) and s. 9 of the Criminal Law (Sexual Offences) Act 1993 respectively. He was sentenced to three years imprisonment and fined €24,000. He appealed his conviction to the Court of Criminal Appeal. The appeal was dismissed. At the time of sentencing in the Dublin Circuit Criminal Court, the respondent, the DPP, indicated that it would be submitting a request for the court to make a confiscation order in the amount of €252,980.33 pursuant to s. 9 of The Criminal Justice Act 1994. The request was successful and the order was initiated after the appellant’s conviction was upheld. On the 28th of June 2013, Dublin Circuit Criminal Court gave judgment directing that this amount be confiscated from the appellant. The appellant appealed to the Court of Appeal against the making of the confiscation order on the grounds that the trial judge: a) erred in law and in fact in determining that the sum of €252,980 might be realised at the time the order was made; b) failed to have due or any regard to s. 9(6) of the 1994 Act in making the confiscation order, thus denying the appellant the benefit of the section, which restricts the amount of any confiscation order to that which might be realised at the time the order is made.

Held by the Court that where a person is found to have benefited from crime, then he should be made to pay to the State an amount equivalent to his criminally obtained benefit; whether that amount was realisable from the proceeds of the criminal activity of which he was convicted or from any other source is immaterial. The Court held that the amount may be recovered from any assets of which he is possessed at the time of making the order. The Court held that once the benefit is established to the satisfaction of the court by the prosecution, the onus shifts to the convicted person to satisfy the court to the balance of probabilities that he has either no realisable assets or that his realisable assets are less than the benefit identified pursuant to the Act. The Court considered correct the trial judge’s conclusion that the expenses involved in committing the criminal activity of which a person has been convicted or the costs involved in defending himself on those charges or meeting bail conditions may not be set off against the benefit found under the Act; such costs or expenses can only arise in the context of ascertaining the realisable assets of a convicted person at the time of making a confiscation order. The Court noted that it was effectively conceded that the sum of €9,397 should have been deducted from the sum found of €252,980.

The Court held that it would dismiss the appeal but vary the amount of benefit found to a figure of €243,583.

Appeal dismissed.

JUDGMENT of the Court delivered on the 31st day of July 2018 by Mr. Justice Hedigan
The Appeal
1

This is an appeal against the making of a confiscation order pursuant to s.9 of the Criminal Justice Act, 1994 by the Dublin Circuit Criminal Court on the 28th of June 2013.

Background
2

On the 22nd of February 2008, the appellant was convicted by a Jury on two counts on an indictment. These were managing a brothel and organising prostitution, contrary to s.11(a) and s.9 of the Criminal Law (Sexual Offences) Act, 1993 respectively. The offending took place in 2005. Following lengthy Garda investigations, it was found that a premises on Bachelor's Walk in Dublin city was being used as a brothel managed by the appellant. The appellant was sentenced to three years imprisonment and fined €24,000. The appellant subsequently appealed his conviction to the Court of Criminal Appeal. The appeal was dismissed.

3

At the time of sentencing in the Dublin Circuit Criminal Court, the respondent indicated that it would be submitting a request for the court to make a confiscation order in the amount of €252,980.33 pursuant to s.9 of The Criminal Justice Act 1994 (the 1994 Act). This request was successful and the order was initiated after the appellant's conviction was upheld. On the 28th of June 2013, judgment was given directing that this amount be confiscated from the appellant.

Personal Circumstances
4

The appellant was born on the 3rd of December 1963, making him 44 years of age at the time of conviction. The appellant had addresses at 23C Lesson Park, Ranelagh, Dublin 6, and 59 Herbert Lane, Dublin 2. The appellant relocated to the United Kingdom to live with his brother and provides an address of 213, Blackstock Road, Highbury, London, N52LL.

Sentence
5

The appellant was sentenced to three years imprisonment and a fine of €24,000 was imposed. The appellant has served that sentence and the fine has been paid. The confiscation order of €252,980.33 was later imposed against the appellant.

Grounds of Appeal
6

The appellant submits the following grounds of appeal; the learned trial judge:

a) Erred in law and in fact in determining that the sum of €252,980 might be realised at the time the order was made. The court finding in relation to the amount that might be realised at the time the order was made was unsupported by the evidence and against the weight of the evidence that was before the court.

b) Failed to have due or any regard to section 9(6) of the 1994 Act in making the confiscation order, thus denying the appellant the benefit of the section, which restricts the amount of any confiscation order to that which might be realised at the time the order is made.

Submissions of the Appellant
7

With regard to the confiscation hearing, the appellant submits that subsection 6 of s.9 of the 1994 Act, limits the scope of any confiscation order to the monies the appellant possesses at the time of the making of the confiscation order. S.9 (6) of the Act states:

(6) The amount to be recovered by an order under this section shall not exceed-

(a) the amount of the benefit or pecuniary advantage which the court is satisfied that a person has obtained, or

(b) the amount appearing to the court to be the amount that might be realised at the time the order is made, whichever is the less.'

8

The appellant relies on the case of Izundu v Judge Martin Nolan & the DPP [2014] IEHC 20, which concerned a confiscation order pursuant to s.4 of the 1994 Act, which relates to the proceeds of drug trafficking. S. 6 of the Act relates to the amount to be recovered under a confiscation order made pursuant to s.4:

‘6.(1) Subject to subsection (2) of this section, where a confiscation order has been made under section 4 of this Act, the amount to be recovered under the order shall be equal to the amount assessed by the court to be the value of the defendant's proceeds of drug trafficking.

(2) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of his proceeds of drug trafficking, the amount to be recovered in the defendant's case under the confiscation order shall be the amount appearing to the court to be the amount that might be so realised.’

9

The appellant submits that s.6 of the Act imposes the same obligation on the court as s.9 (6) in this instant case, the only difference being that s.6 relates to drug trafficking while s.9 (6) deals with non-drug trafficking offences.

10

In Izundu, it was stated by Barrett J that:

‘What the State cannot do is seek to use the confiscation order process to attain the unattainable, i.e. recoup from a convicted drug trafficker monies that, for whatever reason, he no longer possesses.’

11

Barrett J set out a two-step process to be applied under s.6:

‘s.6 (1) requires that a confiscation order be in the amount assessed by the court to be the total value of a defendant's proceedings of drug trafficking. Section 6 (2) provides that if the court is satisfied that the amount that might be realised at the time of the order is less than the amount settled upon pursuant to s.6 (1), then the amount of the order must be reduced to the amount that the court considers might be realised.’

12

It is submitted that the limitation held by Barrett J was not taken into account in this case, and no regard was had to s.9 (6) in relation to the amount that might be recouped from the appellant. The appellant lived in London at the time of the trial, and continues to do so, which meant that he regularly travelled to and from the UK and Ireland in order to meet his bail conditions. The appellant accumulated €57,550 in travel expenses, in addition to significant legal expenses. It is submitted that this was not adequately considered by the trial judge. Further, it is submitted that the trial judge's expression that the appellant ‘certainly does have the money’ was not supported by any...

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2 cases
  • DPP v Morgan
    • Ireland
    • Court of Appeal (Ireland)
    • 23 June 2022
    ...dismissed an appeal brought by the appellant against the confiscation order. See this Court's judgment bearing the neutral citation [2018] IECA 282. However, the amount of benefit found was varied to €243,583 to reflect the confiscation of €9,397.02 in the form of cash receipts earned by th......
  • The Director of Public Prosecutions v Martin Morgan
    • Ireland
    • Supreme Court
    • 29 June 2023
    ...2018, the confiscation amount was varied downwards to €243,583 giving credit for cash funds seized in the brothel at the time of arrest; [2018] IECA 282. Matters now shifted to the High Court, as the 1994 Act 6 On 28 May 2019, the DPP issued an originating notice of motion in respect of the......

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