DPP v Campbell

 
FREE EXCERPT

[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

11CJA/2014 - Birmingham Mahon Edwards - Court of Appeal - 16/12/2014 - 2014 13 3718 2014 IECA 15

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

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 the offending conduct. (3) It is suggested that the learned trial judge gave undue weight to the limited cooperation that had been rendered by the respondent. (4) It is suggested that the failure of the appellant to cooperate with the revenue authorities was in itself a significant aggravating factor which had not been properly marked by the learned trial judge. (5) It is complained that the learned trial 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 involved in his failure to remit...

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