DPP v Campbell

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 16 December 2014
• Neutral Citation: [2014] IECA 15
• Court: Court of Appeal (Ireland)
• Date: 16 December 2014

[2014] IECA 15

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

11CJA/14

DPP v Campbell

APPROVED

Mr. Justice Edwards

JUDGMENT

The People at the Suit of the Director of Public Prosecutions

Applicant

V

Samuel Campbell

Respondent

TAXES CONSOLIDATION ACT 1997 S1078(2)(G)(I)

TAXES CONSOLIDATION ACT 1997 S1078(2)(I)

TAXES CONSOLIDATION ACT 1997 S1078(3)

TAXES CONSOLIDATION ACT 1997 S1078(2)(A)

DPP v MURRAY 2012 2 IR 477 2012/13/3623 2012 IECCA 60

DPP v BEGLEY 2013 2 IR 188 2013/6/1639 2013 IECCA 32

DPP v HUGHES UNREP CCA 29.11.2012 2012 IECCA 85

Sentencing – Undue leniency – Revenue offences – Appellant seeking to appeal against sentence on grounds of undue leniency – Whether sentence was unduly lenient

Facts: The respondent, Mr Campbell, was a self-employed car dealer. He first came to the attention of the revenue authorities in 2004 when he decided to register for VAT. He indicated to the revenue authorities that he had commenced business in July 2004, and that he had opened up a bank account with AIB in that connection. In July, 2005, the Revenue Commissioners carried out a routine revenue audit in respect of his VAT and income tax affairs. In the course of this audit it was discovered that the respondent had an additional bank account with Ulster Bank, which the revenue had not been told about previously, and that he was also using this account in connection with his business. Revenue officials suspected that there had been a deliberate attempt on the part of the respondent to conceal income that would be potentially taxable both under the headings of income tax and VAT. Their suspicions were confirmed once statements relating to this account had been procured directly from Ulster Bank; the amount due to the revenue was €1.1 million, one third of which was comprised of income tax and value added tax due, and two thirds of which was comprised of interest and penalties. The respondent pleaded guilty in September, 2013 to nine counts, representing revenue offences of various varieties contrary to s. 1078(2) of the Taxes Consolidation Act 1997. In respect of each of those nine offences the trial judge had available to him a penalty of up to five years imprisonment and/or a fine of up to €127,000. Having heard the evidence and considered the aggravating and mitigating circumstances, the trial judge determined on a sentence of three years imprisonment on all counts, these sentences to run concurrently, but on the basis that each sentence would be suspended for a period of three years. The net effect of this was that it allowed the applicant to be released immediately following the hearing in the Circuit Court. Citing Director of Public Prosecutions v Begley [2013] IECCA 32, the DPP appealed to the Court of Appeal, contending that the sentence was unduly lenient on six grounds: (1) the trial judge"s characterisation of the case as being marginal amounted to an error in principle; (2) the judge failed to give due weight to the deliberate nature of the offending conduct; (3) the judge gave undue weight to the respondent"s limited cooperation; (4) the failure of the respondent to cooperate with the revenue authorities was in itself a significant aggravating factor which had not been properly marked by the judge; (5) the judge failed to have sufficient regard to the fact that monies held by the respondent in his possession, consisting of VAT that was liable to be remitted to the Exchequer, were held by him in a fiduciary capacity as bailee for the Exchequer, and that there was a breach of trust; (6) the judge failed to have sufficient regard to the principle of deterrence.

Held by Edwards J that the trial judge did err in principle in attaching more weight to the respondent"s limited co-operation than was justified on the evidence; the respondent"s attempt to obstruct revenue investigators was more aggravating than mitigating. Moreover, the Court considered that this was a serious case that in accordance with the line of jurisprudence represented by Begley merits in its circumstances a custodial sentence, and that the failure to impose one in this instance was also an error of principle. Edwards J acknowledged that significant mitigating factors existed; the respondent pleaded guilty, he made significant attempts at rehabilitation and he was offered a job in the event of a non-custodial outcome. The Court was further impressed by the fact that his colleagues in the motor trade seemingly hold him in high regard. The Court considered that there must still be a custodial sentence.

Edwards J held that a sentence of eighteen months would have been merited upon each count, those sentences to be served concurrently and, but for one additional feature of the case, the Court would not have been disposed to suspend any part of those sentences. However, the Court accepted that for the respondent to have to go into custody now would be particularly burdensome for him. Accordingly, the Court sentenced the respondent to twelve months in respect of each count, and all sentences were to run concurrently.

Appeal allowed.

1 1. This is a case in which the respondent pleaded guilty on the 27 ^th September, 2013 to nine counts, representing revenue offences of various varieties. Pleas to these nine counts were acceptable to the Director of Public Prosecutions on the basis that they were sufficiently representative samples of the offending conduct complained of in a 42 count indictment which was then before the court.

2 2. The pleas recorded were in respect of counts 1, 2, 3, 12, 19, 23, 25, 26 and 35 and these may be grouped or characterised in the following way.

3 3. Counts 1, 2. and 3 were pleas to offences contrary to s. 1078 (2)(g)(i) of the Taxes Consolidation Act 1997, as amended, and in simple language those are offences of failing without reasonable excuse to make a revenue return, in this instance a return of income for income tax purposes.

4 4. The plea in respect of Count 12 was to an offence contrary to s. 1078 (2)(i) & (3) of the Taxes Consolidation Act 1997, as amended, which involved failure without reasonable excuse to make a VAT return.

5 5. The plea in respect of Count 19 was also to an offence contrary to s. 1078 (2)(i) & (3) of the Taxes Consolidation Act 1997, as amended, and in this instance it involved failure to remit a sum in respect of VAT.

6 6. Finally the four pleas entered to Counts 23, 25, 26 and 35, respectively, were in respect of offences contrary to s. 1078(2)(a) and 3 of the Taxes Consolidation Act 1997, as amended, and in each instance consisted of knowingly or wilfully delivering an incorrect VAT return.

7 7. In respect of each of those nine offences the learned trial judge had available to him a penalty of up to five years imprisonment and/or a fine of up to €127,000. Having heard the evidence in the case, and having considered the aggravating and mitigating circumstances of the case, the learned trial judge determined on a sentence of three years imprisonment on all counts, these sentences to run concurrently, but on the basis that each sentence would be suspended for a period of three years. The net effect of this was that it allowed the applicant to be released immediately following the hearing in the Circuit Court, on the basis of having received suspended sentences in respect of all of the counts to which he had pleaded.

8 8. The matter comes before this Court by way of an undue leniency type appeal brought at the behest of the applicant. The applicant makes a number of complaints about the sentences imposed by the learned trial judge, and contends that the sentence was unduly lenient on six main grounds. (1) It is complained that the learned trial judge's characterisation of the case as being "a marginal case" amounted to an error in principle. (2) It is suggested that the learned trial judge failed to give sufficient and due weight to the deliberate nature of...