DPP v Patrick Duffy and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 23 March 2009
• Neutral Citation: [2009] IEHC 208
• Court: High Court
• Docket Number: [Bill No. 34 of 2008 C.C.]
• Date: 23 March 2009

[2009] IEHC 208

THE CENTRAL CRIMINAL COURT

BILL NO. 0034 C.C./2008

DPP v Duffy

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND

PATRICK DUFFY AND DUFFY MOTORS (NEWBRIDGE) LIMITED

DEFENDANTS

COMPETITION ACT 1991 S4(1)

COMPETITION (AMDT) ACT 1996 S2

COMPETITION ACT 1991 S3

COMPETITION (AMDT) ACT 1996 S3(4)(A)

TREATY OF ROME 1957 ART 81

TREATY OF ROME 1957 ART 82

COMPETITION ACT 1991 S4

COMPETITION ACT 1991 S5

COMPETITION (AMDT) ACT 1996 S3(1)(B)

COMPETITION ACT 2002 S8

COMPETITION ACT 2002 S11

DPP v MANNING UNREP MCKECHNIE 9.2.2007 (EX TEMPORE)

WHELAN A PRINCIPLED ARGUMENT FOR PERSONAL CRIMINAL SANCTIONS AS PUNISHMENT UNDER EC CARTEL LAW 2007 4 COMP L REV 7

CITY OF LAFAYETTE v LOUISIANA POWER & LIGHT CO 1978 435 US 389

TREATY OF ROME 1957 ART 83(2)(A)

TREATY OF ROME 1957 ART 81(1)

EEC REG 1/2003 ART 23(2)(A)

ACF CHEMIEFARMA NV v EUROPEAN CMSN 1970 ECR 661

GENERAL MOTORS CONTINENTAL NV v EUROPEAN CMSN 1975 ECR 1367

FAULL & NIKPAY EC LAW OF COMPETITION 2ED 2007

R v WHITTLE, ALLISON & BRAMMAR 2009 1 LLOYD'S REP FC 772008 EWCA CRIM 2560

ENTERPRISE ACT 2002 S188 (UK)

ENTERPRISE ACT 2002 S190 (UK)

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 PARA 2.11

COMPETITION (AMDT) ACT 1996 S3(1)

DPP v ROSEBERRY CONSTRUCTION LTD 2003 4 IR 338 2003/20/4492

SAFETY HEALTH & WELFARE AT WORK ACT 1989

COMPANIES ACT 1990 S160

CONROY v AG & ANOR 1965 IR 411

DPP v REDMOND 2001 3 IR 390 2000/8/3164

DPP v Y (N) 2002 4 IR 309 2002/10/2326

ENRIGHT v IRELAND & AG 2003 2 IR 3212004 1 ILRM 103

KENNEDY v MENDOZA-MARTINEZ 1963 372 US 144

COMPETITION (AMDT) ACT 1996 S3

MCMAHON v LEAHY 1984 IR 525 1985 ILRM 422

CONSTITUTION ART 40.1

CRIMINAL LAW

Sentence

Competition law - Offences - Sentencing principles - Purpose of sentence - Deterrence - Mitigating Factors - Imposition of custodial sentence - Equality before law - Requirement of equivalence of penalty for equivalent offences - McMahon v Leahy [1984] IR 525 followed; People (DPP v Roseberry Construction Ltd [2003] 4 IR 338 considered - Constitution of Ireland 1937, Article 40.1 - Competition Act 1991 (No 24), s 4 - Competition (Amendment) Act 1996 (No 19), ss 2 and 3 - Sentence imposed (34/2008 - Mckechnie J - 23/3/2009) [2009] IEHC 208

People (DPP) v Duffy

Facts: The defendants were charged with offences pursuant to s. 4(1) Competition Act 1991 and s. 2 Competition (Amendment) Act 1996, arising from an investigation by the Competition Authority into the activities of the Citroen (Car) Dealers Association, where the defendants were involved in entering and implementing by its object a price- fixing agreement. The defendant director had pleaded guilty to the charges. The association had employed mystery shoppers to police their agreements and breaches resulted in fines. The association had existed for approximately ten years. The accused submitted that he had an unblemished reputation, no previous convictions, that he had co-operated with the authorities, that he had pleaded guilty and submitted the relevance of the circumstances of the offence and his personal circumstances.

Held by McKechnie J., that the Court had to have regard for the gravity of the offence, the circumstances of the offence, the nature of the offence, its continuing duration, the role played by Mr. Duffy, his personal circumstances, any aggravating and mitigating factor and the principles of proportionality and totality. For five years he had involved himself in significant ongoing efforts as part of the criminal cartel. That the crime was a first offence or that he was unlikely to re-offend was of limited relevance in cartel cases. He was not required to engage in anti-competitive acts and the fact that the association had some legitimate purpose could not shroud the illegal activities of the association. Its success was irrelevant to the issue of guilt. He was more than a passive attendee. For co-operation with the authorities to count, it had to have a greater beneficial value. Disqualification pursuant to s. 160 Companies Act, 1990, as amended, would not have a real or substantial disabling effect.

Price fixing was unlawful for 20 years. Mr. Duffy had pleaded guilty to implementing the agreement, which was a significant additional crime. A sentence of six months for entering the plea would be entered and nine months in respect of the implementing plea, but the entirety of both sentences would be suspended for five years upon him entering the usual bond. A fine of €20,000 on Mr. Duffy and an implementation fine of €30,000 would be entered and a fine of €20,000 on the entering plea and €30,000 for the implantation plea would be entered on the company. Both would be given three months to pay one half of the total fine and a further three months to pay the remainder. If he failed to pay he would serve 28 days in default and distress would apply if the company defaulted.

Reporter: E.F.

1 Mr. Justice William M. McKechnie delivered on the 23rd March, 2009

The Charges:

2 1. Arising out of an investigation conducted by the Competition Authority into the activities of an association describing itself as the "Citroen Dealers Association", Duffy Motors (Newbridge) Limited ("Duffy Motors") of Naas Road, Newbridge, Co.Kildare was charged with a number of offences including those listed at Counts 5 and 6 of Bill No. CC0034/2008. These charges were in the following terms:-

* "Count No. 5

Statement of Offence

3 Entering into an agreement which had as its object the prevention, restriction or distortion of competition contrary to s. 4(1) of the Competition Act 1991, and s. 2 of the Competition (Amendment) Act 1996.

Particulars of Offence

4 Duffy Motors (Newbridge) Limited, trading as P.G. Duffy & Sons, between the 24 ^th June, 1997, and the 18 ^th June, 2002, both dates inclusive, within the province of Leinster within the State, being an undertaking within the meaning of s. 3 of the Competition Act 1991, did enter into an agreement with other undertakings, also within the meaning of s. 3 of the Competition Act 1991, which had as its object the prevention, restriction or distortion of competition in the trade of motor vehicles in the province of Leinster by directly or indirectly fixing the selling price of Citroen motor vehicles." (emphasis added)

* "Count No. 6

Statement of Offence

5 Implementing an agreement which had as its object the prevention, restriction or distortion of competition contrary to s. 4(1) of the Competition Act 1991, and s. 2 of the Competition (Amendment) Act 1996.

Particulars of Offence

6 Duffy Motors (Newbridge) Limited, trading as P.G. Duffy & Sons, between the 24 ^th June, 1997, and the 18 ^th June, 2002, both dates inclusive, within the province of Leinster within the State, being an undertaking within the meaning of s. 3 of the Competition Act 1991, did implement an agreement with other undertakings, also within the meaning of s. 3 of the Competition Act 1991, which had as its object the prevention, restriction or distortion of competition in the trade of motor vehicles in the province of Leinster by directly or indirectly fixing the selling price of Citroen motor vehicles." (Emphasis added)

7 2. As part of the same investigation Mr. Patrick Duffy, who is the joint owner and a co-director of Duffy Motors, was also charged with a number of offences including those outlined at Count No's 1 and 2 on the same indictment. These counts read as follows:-

* "Count No.1

Statement of Offence

8 Being a director of an undertaking which entered into an agreement which has as its object the prevention, restriction, or distortion of competition contrary to s. 4(1) of the Competition Act 1991, and ss. 2 and 3(4)(a) of the Competition (Amendment) Act 1996.

Particulars of Offence

9 Patrick Duffy between the 24 ^th June, 1997, and the 18 ^th June, 2002, both dates inclusive, within the province of Leinster within the State, were a Director of Duffy Motors (Newbridge) Limited, trading as P.G. Duffy & Sons, an undertaking within the meaning of s. 3 of the Competition Act 1991, which said company committed an offence namely entering into an agreement with other undertakings, also within the meaning of s. 3 of the Competition Act 1991, which had as its object the prevention, restriction or distortion of competition in the trade of motor vehicles in the province of Leinster by directly or indirectly fixing the selling price of Citroen motor vehicles and the doing of the Acts constituting that offence will authorise or consented to by you." (Emphasis added)

* "Count No. 2

Statement of Offence

10 Being a director of an undertaking which implemented an agreement which had as its object the prevention, restriction or distortion of competition contrary to s. 4(1) of the Competition Act 1991, and ss. 2 and 3(4)(a) of the Competition (Amendment) Act 1996.

Particulars of Offence

11 Patrick Duffy between the 24 ^th June, 1997, and the 18 ^th June, 2002, both dates inclusive, within the province of Leinster within the State, were a Director of Duffy Motors (Newbridge) Limited, trading as P.G. Duffy & Sons, an undertaking within the meaning of s. 3 of the Competition Act 1991, which said company committed an offence namely implementing an agreement with other undertakings, also within the meaning of s. 3 of the Competition Act 1991, which had as its object the prevention, restriction or distortion of competition in the trade of motor vehicles in the province of Leinster by directly or indirectly fixing the selling price of Citroen motor vehicles and the doing of the Acts constituting that offence will authorise or consented to by you." (Emphasis added)

12 3. In layman's terms the following allegations were made against the company:-

13 (1) That...