DPP v Burke
| Jurisdiction | Ireland |
| Judgment Date | 24 January 2005 |
| Date | 24 January 2005 |
| Court | Circuit Court |
THE CIRCUIT COURT
DUBLIN CIRCUIT CRIMINAL COURT
Criminal law - Sentence - Revenue offences - Mitigating factors - Special position of defendant as legislator and breach of trust
The defendant pleaded guilty to knowingly or wilfully furnishing incorrect information in connection with tax. In sentencing the defendant, the Court considered the fact that because of the defendant's special position as a legislator at the time of the offence there had also been a breach of trust.
Held by the Circuit Court (His Honour Judge Hogan) in sentencing the defendant to six months imprisonment that considering all the circumstances, a custodial sentence was appropriate. However such custodial sentence should not be a long one having regard to the mitigating factors.
Reporter: R.W.
Judgment of His Honour Judge Desomond Hogan delivered on 24th day of January, 2005
The D.P.P having directed trial on Indictment the defendant was returned by the District Court to the Circuit Court on 19th January, 2004 on three counts alleging the following offences:
Count 1.
Giving a false declaration to the Chief Special Collector contrary to s. 91(b) (ii)(E) of the Wavier of Certain Tax Interests and Penalties Act, 1993.
Count 2.
Knowingly or wilfully furnished incorrect information in connection with tax contrary to s. 94.2(a) and 3(b) of the Finance Act, 1983.
Count 3
As in Count 2 above.
The Defendant pleaded guilty in this court on the 12th July, 2004 to the offences in 2 &3.
The particulars of offence in Court 2 are as follows:
That the defendant Raphael Burke on or about the 15th day of December, 1993 in the County of Dublin knowingly or wilfully delivered an incorrect statement or furnished incorrect information in a declaration given to the Chief Special Collector who was designated as such the by Revenue Commissioners under s. 7 of the Wavier of Certain Tax Interests and Penalties Act, 1993 which was in connection with his income tax, which was incorrect by reason of the failure to include therein income in the amount of £91,980.00.
The particulars of offence in Count 3 are as follows:
That the defendant Raphael Burke on or after December, 15th 1993 in County of Dublin knowingly or wilfully furnished incorrect information by letter dated 15th day of December 1993 from McNally & Co., Certified Accountants in connection with his income tax to the Inspector of Taxes which was incorrect by reason of the failure to include therein income in the amount of £24,038.
The defendant is not prosecuted for the specific offences of breeching the Amnesty Act.
Facts as to Count 2.
As a result of documents seized from the defendant's house the Revenue Commissioners formed the opinion that a Declaration of Income made by the Defendant on 15th December, 1993 considerably understated the correct income of the defendant. The defendant by his declaration of the 15th December, 1993 returned an income of £5,085 for the periods covered by the declaration and the defendant paid tax on that amount. From the documents seized the Revenue Commissioners calculated that the amount of income which flowed from interest bearing deposit accounts should have been in the amount of £97,065. This was income from various
sources in this country, Jersey, and the U.K. Credit was given for the amount £5,085 as he had declared and the figure of £91,980 referred to in Count 2 is the correct and agreed net figure that has been underdeclared and is a total figure from the sources already mentioned from the years 1982/83, 83/84, 84/85, 85/86, 86/87, 87/88, 88/89, 89/90, 90/91.
Facts as to Count 3.
The defendant furnished to his accountant incorrect information of interest on deposit earnings for the years 91/92 and 92/93 which the accountant in turn forwarded to the Revenue Commissioners. This was an attempt to adjust income on deposit interest for the years 91/92 and 92/93 and portray compliance with the requirement of the Amnesty Act. The figures submitted were not a correct statement of deposit interest for those years and were not inclusive of income to the amount of £24,038. None of these figures are included in the larger figure referred to in Count 2. The offences in Counts 2 & 3 carry a penalty of 5 years imprisonment and/or a fine of £10,000.
The Defendant
The defendant was born on the 3rd September, 1943. He is now aged 61; 62 next birthday. He was 50 years of age at the time of the commission of the offences. He has been a member of the Oirechtas since 1973 and has held various ministerial offices over the years.
October 1980 - June 1981 Minister for the Environment
March 1982 - December 1982 Minister for the Environment
March 1987 - November 1987 Minister for Energy and Communications
November 1988 - June 1989 Minister for Industry, Commerce and Communications
July 1989 - November 1991 Minister for Justice and Communications
November 1991 - February 1992 Minister for Justice
June 1997 - October 1997 Minister for Foreign Affairs.
As at the relevant dates in Counts 2 & 3, namely as at the making of the Declaration the defendant was not holding any ministerial position but was a minister for some of the earlier periods covered by the declaration. He is no longer a member of the Dáil and I am told he is essentially a Dáil pensioner.
The Law:
In
D. P. P. v. Redmond, the Court of Criminal Appeal
, 2001 held that insofar as they had been established in evidence, the personal circumstances of the defendant, the payment of a severe penalty, the immediate plea of guilty and the defendant's contrition and the co-operation were relevant matters in relation to the sentence. Since proportionality was the key principle in sentencing, the Court should endeavour to consider the cumulative sum of the penalties in assessing the amount of the final one. In deciding that the court should have consideration for the penalties paid by the defendant the court followed the reasoning of Finlay C.J. in ...
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