DPP v Carew

• Jurisdiction: Ireland
• Judge: Ms. Justice Whelan
• Judgment Date: 25 March 2019
• Neutral Citation: [2019] IECA 77
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 100/2018
• Date: 25 March 2019

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

- AND -

Paul Carew

Appellant

[2019] IECA 77

Whelan J.

Birmingham P.

Whelan J.

McCarthy J.

Record Number: 100/2018

THE COURT OF APPEAL

(CRIMINAL)

Sentencing – Money laundering – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Carew, appealed to the Court of Appeal against severity of sentence. The sentence was imposed on the 15th March, 2018 in Dublin Circuit Criminal Court. There were two separate indictments, bill number DU1092/2017 and DU262/2018 before the court. The offences in question concerned two counts of money laundering contrary to s. 7 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. The evidence before the court was that both offences were committed during the currency of a three-year suspended sentence imposed for a prior similar offence of money laundering contrary to s. 7 of the said Act which had been imposed on the 14th April, 2016 at Dublin Circuit Criminal Court. Accordingly, a third issue for consideration by the circuit judge at the sentencing hearing on the 15th March, 2018 was bill number DU976/15 which was re-entered by the respondent, the Director of Public Prosecutions, pursuant to s. 99(13) of the Criminal Justice Act 2006. The sentencing judge imposed a “global sentence” on the appellant of a term of eight years’ imprisonment backdated to the date he was first taken into custody on the 24th June, 2017. The appellant relied on twelve separate grounds of appeal which asserted that the sentencing judge erred, including, either in law and /or in principle as follows: (i) in imposing a sentence of eight years’ imprisonment same was excessive/unduly severe/disproportionate; (ii) in terms of the structure of the sentence which he imposed in respect of the two later offences; (iii) as regards where the offences lay on the scale of offending behaviour; (iv) in failing to properly assess and determine the role of the appellant in the offending behaviour, and to impose a sentence commensurate with this level of culpability; (v) in failing to properly take into account the background circumstances to the offending behaviour; (vi) the judge erred in law in failing to structure a sentence balancing the punitive, deterrent and rehabilitative elements and in failing to structure a sentence proportionate to the circumstances of the particular offender; (vii) in failing to have any regard to the punitive nature of a suspended sentence or community sanction as an alternative to a custodial sentence; (viii) in failing to have adequate regard to the absence of relevant previous convictions prior to the first money laundering offence set out in bill number 976/2015; (ix) in failing to take adequate account of the significant mitigating factors submitted on his behalf; (x) in failing to provide a sentence that appropriately reflected the personal circumstances of the appellant and the difficulties he would have serving a term of imprisonment, and the effect of his absence on his family; (xi) in failing to have adequate regard to the ancillary penalty suffered such as (but not limited to) the loss of employment and ability to maintain his family since going into custody; and (xii) in failing to have adequate regard to the contents of the documentary evidence and the testimonials submitted on behalf of the appellant.

Held by the Court that the global sentence imposed by the circuit judge was properly constructed and was proportionate to the crimes committed by the appellant; further, the said two crimes were committed during the currency of a three-year suspended sentence for a like crime of money laundering. The Court held that the global pre-mitigation sentence was reflective of the overall gravity of the offending conduct and that the structure of the global sentence was effective to achieve a degree of general deterrence.

The Court held that there was no error of principle by the sentencing judge and that the global sentence imposed was no longer than the relevant offences objectively merited. The Court held that the appeal would be dismissed and that the order of the sentencing judge would be affirmed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 25th day of March 2019 by Ms. Justice Whelan

1 This is an appeal against severity of sentence. The sentence was imposed on the 15th March, 2018 by His Honour Judge Martin Nolan in Dublin Circuit Criminal Court. There were two separate indictments, bill number DU1092/2017 and DU262/2018 before the court. The offences in question concerned two counts of money laundering contrary to s.7 Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. The evidence before the court was that both offences were committed during the currency of a three-year suspended sentence imposed for a prior similar offence of money laundering contrary to s.7 of the said Act which had been imposed on the 14th April, 2016 by Her Honour Judge Sheahan at Dublin Circuit Criminal Court. Accordingly, a third issue for consideration by the circuit judge at the sentencing hearing on the 15th March, 2018 was bill number DU976/15 which was re-entered by the Director of Public Prosecutions pursuant to s. 99(13) Criminal Justice Act 2006.

2 It is noteworthy that the maximum penalty for an offence contrary to s.7 Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 is fourteen years. The sentencing judge imposed a ‘global sentence’ on the appellant of a term of eight years” imprisonment backdated to the date he was first taken into custody on the 24th June, 2017.

Background facts

3 In terms of his background and personal circumstances the appellant was born in 1976 and was aged about thirty-seven years at the date of the first offence in July 2014. He has a good work record and has been in employment mainly as a haulage driver from about the age of fifteen. He is now aged forty-two years. Prior to his involvement in the first of this series of three money laundering offences he had no previous convictions. He is legally separated and in a long term relationship. One of his children suffers from a significant medical condition. His employment history is good and includes spending ten years with one transport company.

4 On the 14th April, 2016 the appellant received his first conviction for money laundering before the Dublin Circuit Criminal Court. The offence came to light when the appellant was apprehended travelling to the Citywest area in Dublin from Limerick on the 22nd July, 2014. At the time of his apprehension the appellant was found to be in possession of €67,900.00, subsequently determined to be the proceeds of criminal conduct. The sentence of three years imposed by the Circuit Criminal Court was suspended for a period of three years.

Events during service of the suspended sentence

5 Four months after the said suspended sentence was imposed, on the 27th August, 2016, Gardaí from the National Drugs and Organised Crime Bureau were conducting a surveillance operation at Liffey Valley Shopping Centre in Clondalkin. A Ford Focus van was observed. A Volkswagen Golf approached it, handing over two bags. An armed intervention team intercepted the Volkswagen van which was being driven by the appellant. On inspection, the vehicle was found to have been adapted with a concealed compartment which was opened by means of a concealed lever. Upon the concealed compartment being found underneath the rear of the vehicle internally, two bags containing €191,160.00 in cash were recovered by the Gardaí. The appellant was charged on the 26th October, 2016 and entered a plea of guilty on the 6th December, 2017. The said offence is comprised in bill number DU1092/2017.

6 The third money laundering offence occurred on the 24th June, 2017, fourteen months after the three-year suspended sentence was imposed. It is specified in bill number DU262/2018. The evidence before the sentencing judge was that the appellant was arrested during the course of an operation tackling a large organised crime group operating inside and outside the State. The appellant was one of the main targets of the operation along with two other individuals. On the said date the appellant was observed at a car wash in Walkinstown, Dublin 12. He exited a van in which he had been travelling as a passenger carrying a large box. He walked to the back of the car wash and opened the passenger door of another van which was parked there and got in. He remained inside for approximately fifteen to twenty seconds and then exited the van without the box. The vehicle was then intercepted and €351,000.00 in cash was recovered from the box. he appellant was arrested and charged with money laundering. He entered a plea of guilty on the 9th March, 2018.

7 The uncontested evidence before the trial judge was that the appellant was a trusted person within the organisation in question and was highly involved in the organisation. The evidence was that Mr. Carew was the main focus of the armed intervention team and surveillance operation on the 24th June, 2017.

8 Since the latter date the appellant has been in custody. Two other individuals were also separately before the courts in relation to the events of the said date. The appellant pleaded guilty.

Mitigating arguments advanced on behalf of the appellant

9 At the sentencing hearing it was contended in mitigation as follows: -

(a) That the appellant's plea of guilty was of value to the prosecution;

(b) Personal financial difficulties had led him into money laundering in the first place;

(c) Following his first conviction on the 14th April, 2016 his life had been threatened the criminal enterprise for whom he worked, and as a result he was incapable of resisting the pressure;

(d) At the date of the...