DPP v Perry

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: Mr. Justice Hardiman.
• Judgment Date: 29 July 2009
• Neutral Citation: [2009] IECCA 161
• Date: 29 July 2009

[2009] IECCA 161

THE COURT OF CRIMINAL APPEAL

Hardiman J.

Budd J.

deValera J.

77/09

DPP v Perry

Between:

DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

and

COLM PERRY

RESPONDENT

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 140

R v HOWELLS 1999 1 WLR 307 1999 1 AER 50

DPP v REDMOND 2001 3 IR 390

CRIMINAL LAW

Sentence

Mitigating factor - Person of good character - Absence of previous convictions - Severity of sentence - Punitive sentence - Personal history excluded - Demonstration factor - Totality of hardship approach - Significant period of imprisonment served - Revenue offence - Whether error in principle - Whether sentence purely demonstrative - Whether personal circumstances taken into account - Whether financial penalty of interest payment punitive - R v Howells [1999] 1 WLR 307 and People (DPP) v Redmond [2001] 3 IR 390 considered - Balance of sentence suspended (77/2009 - CCA - 29/7/2009) [2009] IECCA 161

People (DPP) v Perry

Facts The appellant appealed against the sentence imposed by the Circuit Court for the appellant's evasion of revenue responsibilities over a period of nine years. The appellant was a married man with the responsibility of supporting three children and was a person without previous convictions and was also of good character. The appellant pleaded guilty before the Circuit Court and the Revenue had been assisted with their investigation by the availability of reasonably well kept records held by the appellant. The learned trial judge accepted the likelihood that the appellant would not re-offend in the future and in imposing the sentence he stated that there was no point in imposing a sentence in order to rehabilitate the appellant as he was not at risk of re-offending. The sentence imposed was imposed purely for demonstration purposes.

Held by Court of Criminal Appeal (Hardiman J. Budd, deValera JJ) in allowing the appeal: That the learned trial judge excluded from his consideration any ground for a custodial sentence other than the purely punitive. That approach was not in accordance with the accepted jurisprudence and certainly was not in accordance with the established jurisprudence for the treatment of first offenders of good character. The learned trial judge did not appear to consider that the financial penalty of the same amount as the tax owed in this case, namely in round figures half a million euro, was in the nature of a punitive consequence. Furthermore, running interest at the rate between 9% and 12% was undoubtedly punitive. In all the circumstances of this case the learned trial judge erred in principle by wholly excluding the personal factors of the appellant from what he seemed to think necessary about the demonstration factor in sentencing. The appellant had already served a significant period of time in custody and so it was appropriate at this juncture to suspend the balance of the sentence for a period of 12 months.

Reporter: L.O'S.

1 Judgment of the Court delivered on the 29th day of July 2009 by Mr. Justice Hardiman.

2 This is a married man with the responsibility of supporting three children and is a person, as I will illustrate in a moment from the transcript of the trial, not merely without previous convictions but a person of good character.

3 The sentence was also a significant one because, as the learned trial judge correctly held, this is a case where there is no point in imposing a sentence in order to rehabilitate Mr. Perry, so that the sentence will be imposed purely for demonstration purposes. It is so well established a principle in our jurisprudence of sentencing that it is almost trite to say that the sentence in every case, no matter what the nature of the case, must take into account both the offence and the circumstances of the offender. I have to say that though it is undoubtedly the case as we have read, based on the material which is apparently taken from the Revenue website, that tax cases involving significant sums of money are disposed of without prosecution, and the Revenue having made the decision not (as it is put) to investigate for the purpose of prosecution, this case was plainly put into the prosecution stream, because there was no qualifying disclosure of any sort.

4 It is important perhaps to record a number of things about the case. First of all, the business which took place was in a building company or a building enterprise with two permanent employees. I am at something of a loss to see how that is not a small building business though Mr. McGinn, for the prosecution, demurred and said it is a medium building business. There is no point in attempting to resolve that conflict which I suppose is...