DPP v Maguire

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IECA 350
• Docket Number: 211/15
• Date: 2015
• Year: 2015
• Court: Court of Appeal (Ireland)

Birmingham J.

Sheehan J.

Mahon J.

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Aoife Maguire

Appellant

[2015] IECA 350

211/15

THE COURT OF APPEAL

Sentencing – Conspiracy to defraud – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Ms Maguire, was an assistant manager with Anglo Irish Bank. In the late 1990s the Revenue Commissioners were examining financial institutions in the State, to establish if Deposit Interest Retention Tax (DIRT) was payable arising from accounts held by those institutions. Anglo Irish Bank was assessed at the time as having a nil liability. There followed a tax amnesty and in response to the availability of the amnesty a number of customers of the bank came forward to disclose to the authorities bogus non–resident accounts. This triggered renewed interest on the part of Revenue into the affairs of Anglo Irish Bank. In March 2003, the Revenue Commissioners obtained a High Court order requiring the release by the bank of a list of non–resident deposit account holders. In October/November 2003, the Revenue authorities embarked on an audit in Anglo Irish Bank which was focused on non–resident deposit accounts and specifically those which were stated to be DIRT exempt. As part of the audit process, Anglo was required to provide a list all relevant accounts. However, the list that was supplied to Revenue was not comprehensive and some half dozen or so accounts which ought to have been included were deleted from the list. All those accounts were linked in one way or another to a senior figure within the bank. The exclusion from the documentation that was being prepared of the accounts in question required action on the part of the bank’s IT department. Ms Maguire told the IT professionals what they were to do. It was accepted that she was not doing this on her own initiative, indeed her status in the bank was such that she would not have had authority acting on her own to issue instructions to the IT department, but rather that she was passing on the messages and instructions of persons senior to her. There were six counts on an indictment which alleged conspiracies either to defraud the Revenue or to commit an offence contrary to s. 243(1) of the Companies Act 1990, by destroying, mutilating or falsifying books and records relating to the property of the bank. The jury returned unanimous guilty verdicts against the appellant and two co–accused. A sentence of eighteen months imprisonment was imposed on the 31st July, 2015, in the Dublin Circuit Court. The appellant appealed to the Court of Appeal against severity of sentence.

Held by Birmingham J that the judge in the Circuit Court erred in selecting a sentence of eighteen months, a sentence which was more severe than necessary, and then in failing to consider suspending any part of it.

Birmingham J held that the Court would quash the sentence imposed in the Circuit Court and would substitute for the sentence there imposed a sentence of nine months imprisonment, but would suspend any unserved sentence as of the 21st December, 2015.

Appeal allowed.

Judgment of the Court (ex tempore) delivered on the 21st day of December 2015, by Mr. Justice Birmingham

1 This is an appeal against severity of sentence.

2 The sentence under appeal is one of eighteen months imprisonment that was imposed on the 31st July, 2015, in the Dublin Circuit Court. The sentence hearing took place on that day followed on from a long trial at the conclusion of which the jury returned unanimous guilty verdicts against the appellant and two co-accused.

3 There were six counts on the indictment (seven count indictments in all) which alleged conspiracies either to defraud the Revenue or to commit an offence contrary to s. 243(1) of the Companies Act 1990, by destroying, mutilating or falsifying books and records relating to the property of the bank.

4 While there were good reasons for the prosecution to structure the indictment in the way that they did, it perhaps gives the impression of a more extensive conspiracy campaign than was in fact in issue. There was, really one act of wrongdoing which involved a conspiracy to conceal a number of bank accounts connected in one way or another to a senior figure within the bank from the Revenue Commissioners.

5 So far as the maximum sentence available to the court is concerned, the sentencing judge approached his task on the basis that the maximum sentence applicable should be regarded as one of five years imprisonment. He did so in a situation where the sole substantive offence on the indictment carried a maximum penalty of five year and/or a fine. Counts 2, 3, 5 and 6 involved a conspiracy to commit common law offences and they were punishable at the discretion of the court, no maximum sentence is provided, but there is a long standing convention that the penalty should not exceed the penalty that would apply for the substantive offence. Here, as we have seen, the substantive offence is provided for in s. 243 of the Companies Act and carries a maximum sentence of five years.

6 The position in relation to counts 4 and 7 on the indictment is more complicated again. These counts deal with common law offences for which there is no maximum sentence. But here there is no directly relevant substantive offence to provide guidance. However, these offences are inextricably linked with the other counts on the indictment which carry a five year penalty either by statute or by convention. In the circumstances the decision of the trial judge to operate on the basis that the maximum sentence available to him was one of five year imprisonment was a sensible and realistic one.

7 In a situation where there are other appeals pending in this Court's list, and where there are other trials scheduled to come on in the Circuit Court, this Court will refer to the facts of the case only in outline and then briefly.

8 The appellant, Ms. Maguire was an assistant manager with Anglo Irish Bank. In the late 1990s the Revenue Commissioners were examining financial institutions in the State, to establish if Deposit Interest Retention Tax or DIRT was payable arising from accounts held by these institutions. Anglo Irish Bank was assessed at the time as having a nil liability. There followed a tax amnesty and in response to the availability of the amnesty a number of customers of the bank came forward to disclose to the authorities what have become known as bogus non resident accounts. This triggered renewed interest on the part of Revenue into the affairs of Anglo Irish Bank. In March 2003, the Revenue Commissioners obtained a High Court order requiring the release by the bank of a list of non resident...