DPP v Kavanagh

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 27 January 2020
• Neutral Citation: [2020] IECA 13
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 0167CJA/2019
• Date: 27 January 2020

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPLICANT

- V -

CLIVE KAVANAGH

RESPONDENT

[2020] IECA 13

Edwards J.

McGovern J.

Kennedy J.

Record No: 0167CJA/2019

THE COURT OF APPEAL

Sentencing – Money laundering – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Kavanagh, on the 5th of March, 2019, in Naas Circuit Court, pleaded guilty to one count of money laundering contrary to ss. 7(1) (a) (ii), 7 (1) (b) and 7 (3) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. Evidence of the circumstances of the crime and concerning the respondent’s antecedents was heard, and sentence was handed down, on the 4th of July, 2019. The respondent was sentenced to three years’ imprisonment with the final eighteen months thereof suspended for a period of eighteen months following his release on the respondent entering into a bond in the sum of €100 to keep the peace and be of good behaviour during that period. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal seeking a review of the sentence on the grounds of undue leniency. It was conceded both in written submissions and in argument before the Court at the oral hearing that no complaint could be pressed with respect to a six-year headline sentence nominated by the trial judge, or with the three years discounted in the first instance to reflect mitigation. The real complaint on the Director’s part was with respect to the suspension of 50% of the remaining three-year post mitigation sentence. The Director contended that this was unjustified, that it represented a double counting of mitigating factors, and that it was outside the norm, thereby rendering the sentence unduly lenient.

Held by the Court that, although it regarded the sentence at issue as being very lenient, it was unable to conclude that it was so lenient as to be significantly outside the norm. The Court was satisfied that the sentencing judge acted within his legitimate discretion in seeking to prioritise the reformation of the respondent and it concluded that the partial suspension was not excessive. The Court did not accept that there was double counting of mitigating factors in this case. The Court held that the discount from six years to three years was for true mitigation; however, a judge is entitled to promote desistence and offer an incentive towards rehabilitation or reformation over and above the discount that must be afforded for true mitigation, if the circumstances of the case merit it and there is an evidential basis to justify it. The Court held that the respondent was not being rewarded twice for mitigating circumstances already taken into account, rather he was being incentivised to reform. The Court held that the judge was promoting desistence in circumstances where the available evidence did not render it disproportionate to do so, but rather permitted it.

The Court held that the application would be dismissed.

Appeal dismissed.

JUDGMENT of the Court ( ex tempore) delivered on the 27th day of January 2020 by Mr Justice Edwards

Introduction

1 On the 5th of March, 2019, in Naas Circuit Court, the respondent pleaded guilty to one count of Money Laundering contrary to the section 7(1) (a) (ii), 7 (1) (b) and 7 (3) of the Criminal Justice (Money Laundering and Terrorist Financing) Act, 2010. Evidence of the circumstances of the crime and concerning the respondent's antecedents was heard, and sentence was handed down, on the 4th of July, 2019. The respondent was sentenced to three years' imprisonment with the final eighteen months thereof suspended for a period of eighteen months following his release on the accused entering into a bond in the sum of €100 to keep the peace and be of good behaviour during that period.

Background Facts

2 The court heard evidence from Detective Garda Declan O'Reilly of the Drugs and Organised Crime Bureau in relation to the offence. Based on intelligence gathered, the gardaí expected that a large sum of cash was to be transferred between two parties at Tougher's Garage, Naas on the 1st of September, 2017. A surveillance operation was accordingly mounted at that location on that date. At around 8.15 pm, gardaí observed a white Scania lorry parked in the parking area at that premises. At 8.25 pm, a man who is co-accused, but who was not before the court on the same date as the respondent, was observed exiting the driver's side of the lorry and heading for the garage. He returned to the lorry at 8.50 pm before leaving again for the restaurant, and returning at 9.25 pm. He was observed walking around the car park, having left the door of the vehicle open, and speaking on his phone.

3 At 10.15 pm, a grey Volkswagen Passat, driven by the respondent, pulled up and positioned itself beside the driver's side of the lorry. The boot of the Passat was then remotely unlocked. After brief conversation, the co-accused and the respondent went to the boot, where a purple holdall bag was removed by the co-accused, and placed in the driver's side of the lorry. The two men then engaged in further conversation, and whilst they were so engaged gardai intervened, arrested both men and searched the lorry. The purple holdall was located in the driver's side foot-well of the lorry and was seized.

4 The respondent had been arrested for an offence contrary to s.7 of The Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. He was then conveyed to Naas Garda Station and was detained there pursuant to s.4 Criminal Justice Act, 1984 for the proper investigation of the offence for which he had been arrested.

5 Upon examination by gardai, the purple holdall bag was found to contain €829,265, in 17 plastic-wrapped bundles. A subsequent search of the respondent's vehicle yielded a Blackberry phone, an iPhone, and an Alcatel phone, as well as envelopes containing money bags, and rubber gloves and the car's keys. Following the respondent's release from s.4 detention a file was sent to the DPP who directed that he be charged with the offence to which he ultimately pleaded guilty.

Respondent's Personal Circumstances

6 The respondent is now a 37 year old man who is a native of Dublin. At the time he was residing in Lucan with his wife and two children. He had been self-employed in the construction industry since leaving school and was the sole provider for his family. He still benefits from the support of his family. A large number of testimonials were handed in to the court from various persons, including family members, friends, work colleagues and business associates attesting to the good character of the respondent, expressing shock at learning of his involvement in this crime and suggesting that his involvement was out of character.

7 The respondent has nine previous convictions, all relating to minor road traffic regulatory offences, such as failure to have an NCT, with the exception of one previous conviction before the Circuit Court on indictment in 2004, when he was 21, for possession of controlled drugs for sale or supply contrary to s.15 of the Misuse of Drugs Act 1977. This matter had been dealt with non-custodially, with the respondent receiving a two-year suspended sentence and an €800 fine.

8 It was accepted by Garda O'Reilly in cross-examination that the respondent entered an early plea which had been of some assistance and that he had complied with his bail conditions. Garda O'Reilly further confirmed that the respondent was not the owner of the money seized. While the crime to which the monies related was not identified, and under the relevant legislation it does need to be, Garda O'Reilly further remarked “we don't believe he stole all the cash”, implying at least that the crime at issue involved some form of theft.

Sentencing Judge's Remarks

9 In sentencing the respondent, the sentencing judge stated the following:

“… it appears that the accused was involved in the transfer of monies at the garage to someone else in the chain, so to speak, and the gardai intervened and arrested him. It is a very large sum of money - in cash, I note - and clearly the proceeds of criminal conduct and organised crime. It is a fair point which has been raised by the defence that I cannot make any presumption that it is drugs money with the particular difficulty that that would cause the defendant in terms of sentence. But, equally, organised crime remains a problem for the State and for communities within the State, and I have to deal with it therefore in a serious manner.

The involvement of this particular accused is that he appears to be some form of conduit for the monies in that the monies were not his own, but he's part of a link, or chain, which these monies which were the proceeds of criminal conduct were being moved around. And unfortunately for him, he has to take the responsibility for that. The amount involved would suggest that I have to take it seriously, and in terms of the first problem, namely where is it on the scale of harm and moral turpitude, it seems to me that the correct sentence for this amount of cash in the circumstances, having regard to the background of the accused and the facts that I've heard, would be six years' imprisonment. That is my view of where the case lies in terms of its seriousness and on the scale it's somewhere, it seems to me, towards the higher end of the mid-range, certainly in the mid-range. I note in the Cunningham case there was over 4 million involved and clearly with serious crime there are large sums of money involved....