DPP v Derek Floyd

 
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[2014] IECA 39

THE COURT OF APPEAL

Birmingham

Mahon J.

Edwards J.

199/12
234/13
DPP v Floyd
The People at the Suit of the Director of Public Prosecutions
Respondent
V
Derek Floyd
Appellant

199/2012 & 234/2013 - Birmingham Mahon Edwards - Court of Appeal - 16/12/2014 - 2014 15 4101 2014 IECA 39

DPP v GILLIGAN (NO 2) 2004 3 IR 87 2003/16/3559

Criminal Law – VAT offences – Handling Stolen Property - Sentencing - Severity

1

1. In this case the appellant appeals against the severity of two sentences of imprisonment that have been imposed upon him. The first sentence that the court is concerned with was imposed on the 21 st May, 2012 and on that occasion in the Circuit Court he was sentenced to a term of six years imprisonment with one suspended. That was on the basis of two sentences, each of three years which were to be consecutive to each other with as I say, the last year to be suspended. That sentence was imposed following a conviction of the appellant on fifteen counts of making incorrect VAT returns and twelve counts of claiming VAT rebates to which he was not entitled. The sentencing process followed a lengthy trial which concluded on the 21 st March, 2012, with the jury bringing in verdicts of guilty on the count to which I have referred.

2

2. The maximum sentence on each of the counts was one of five years imprisonment. The facts of the case can be summarised as follows:

"The applicant obtained registration as a sub contractor getting a C2 card from the Revenue. This enabled him to be paid by principle contractors in full that is without deduction of relevant contract tax by principle contractors. However, during the period in question, 2001 to 2003 ...."

and I pause to say that that represented fifteen VAT periods, each of two months in respect of which the offending continued,

"… he allowed his C2 card to be used by others so that unregistered subcontractors could be paid gross, that is to say without deduction of tax by the principle contractor. These principles paid Mr. Floyd in his invoices. He then cashed the cheques, took his agreed cut and then passed the balance over to the intermediaries. After the first six months of the enterprise, he opened a bank account and put the payments and the receipts through his bank account. The withdrawals from the intermediaries were also reflected in the bank account. As he was obliged to account for VAT on these sales, he arranged to be provided with, or he was provided with, fictitious invoices in respect of fictitious supplies to him so that he could claim input credit to offset the VAT Liability of sales. In a number of instances he went further than merely offsetting the sales liabilities and claimed refunds. The amount of credits claimed resulted in him obtaining refunds which were very significant in some instances."

3

3. This summary is taken from the judge's remarks when passing sentence. However, it is helpful to read on a little for reasons which will become apparent as it is relevant to one of the arguments relating to the principle contention made as to the appropriateness of sentence imposed.

"For example in the period May/June 2002 he claimed a refund of €156,136 and in September/October 2003, a sum of €143,683. The accused's fee for his involvement in the scam was VAT plus 10%. I recall some evidence from the trial that he complained that others in Dublin were in fact getting 15%. In evidence this morning, the Revenue Investigating Officer Mr. Downey said that the total refunds claimed amounted to €684,000 in respect of which Mr. Floyd received €415,536 broken down in terms of actual cheques received of €388,951 and offset against other tax liabilities of €26,585 and that refunds claimed of €267,000 were actually refused by the revenue, Mr. Downey said that close to €16 million went through the accused's bank account in July 2001 and 2004 and that, taking into account he was not using the bank account for the first six months for the operation and adjusting for VAT, he estimated that the...

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