DPP v O'Reilly
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 21 March 2023 |
| Neutral Citation | [2023] IECA 66 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Record Number: CCA CJ 0162/2022 |
[2023] IECA 66
The President
McCarthy J.
Ní Raifeartaigh J.
Appeal Record Number: CCA CJ 0162/2022
THE COURT OF APPEAL
JUDGMENT of the Court delivered on the 21st day of March 2023 by Ms. Justice Ní Raifeartaigh.
. This is an appeal brought by the Director of Public Prosecutions on the ground that the sentence imposed was unduly lenient. The sentencing judge imposed a sentence of eighteen months, fully suspended, at a sitting of the Circuit Criminal Court, Kilkenny on the 28 th July 2022 in respect of eight sample counts of money laundering.
. Section 7(1) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 provides that a person commits the offence if —
(a) the person engages in any of the following acts in relation to property that is the proceeds of criminal conduct:
(i) concealing or disguising the true nature, source, location, disposition, movement or ownership of the property, or any rights relating to the property;
(ii) converting, transferring, handling, acquiring, possessing or using the property;
(iii) removing the property from, or bringing the property into, the State.
. Subsection 7(1)(b) provides that the person must also know or believe or be reckless as to whether or not the property is the proceeds of criminal conduct. The maximum penalty for the offence on indictment is a fine or imprisonment for a term not exceeding fourteen years.
. Section 6 of the Act, which is located in Part 2 entitled “Money Laundering Offences”, sets out a definition of the proceeds of criminal conduct. It says that the “proceeds of criminal conduct” means any property that is derived from or obtained through criminal conduct, whether directly or indirectly, or in whole or in part, and whether that criminal conduct occurred before, on or after the commencement of the Part.
. At the time of sentence, there were three accused persons before the court of whom the respondent was one. The evidence adduced at the sentencing hearing was as follows. The officer in charge said that in 2018 an investigation was conducted in respect of certain unexplained assets and, as a result of that, the Gardai became aware of certain accounts in a credit union in Kilkenny relating to the three suspects and obtained an order under s.63 of the Criminal Justice Act 1994 in order to access relevant information. One account was in the name of the respondent, the other in the name of Stephen O'Reilly (the respondent's son), and the third in the joint names of the respondent and Francis O'Reilly (another son). The account in the respondent's name had a balance of €5,315; the account in relation to Stephen O'Reilly had an amount of €61,330; and the joint account had an amount of €11,565. A Garda Superintendent made a direction that various applications would be made to freeze the accounts. Inquiries had been carried out with social welfare and the revenue authorities and the only legitimate income identified consisted of social welfare payments. All three men were claiming welfare on a “nil means” basis, meaning that their only income was from social welfare.
. Six addresses were searched in June of 2018 on foot of search warrants, including the home of the respondent. This led to the uncovering of an Irish Life account that was previously unknown to the investigation. A similar order was applied for in relation to that account and in time it was revealed that this account, an investment account, had a balance of over €100,000, and that it had been opened on the 29 th November 2007.
. In August 2018 the three accused were interviewed by arrangement at Kilkenny Garda Station in connection with suspected money laundering. The respondent handed in a prepared statement and declined to answer any questions. His statement said that he could not, by reason of the lapse of time, provide an explanation of how the monies came to be in the Irish Life policy. In relation to the credit union account, he said he opened it and made various lodgements and transfers to it from an account he held at the Trustee Savings Bank totalling €22,500, but no explanation was given of where that money had come from. He said that on the 27 th July a lodgement of €7,500 was made to his credit union account and this had been withdrawn from the joint account held by him and his son Stephen. In respect of the joint account held with Francis O'Reilly, he said he had settled a personal injuries action in May 2013 in an amount of €15,000. This fact was verified by the Gardaí. He said that the amount was lodged to that account and then he gifted money to his sons Francis and Stephen. He also said that his wife had settled a personal injuries action in the amount of €11,000 and a portion of that was lodged into his account. The Gardai had uplifted her account under court order and it was shown that the entirety of the €11,000 went into that account but no portion of it was lodged to Mr. O'Reilly's account.
. The respondent said that he was involved in buying and selling horses as well as collecting scrap on a small scale, and that he would lodge money from these activities to his accounts. He said that he was an early school leaver, had difficulties with literacy and numeracy and found it difficult to identify individual lodgements and withdrawals. He also said that it was common within the Travelling community, of which he was a member, to lend money to family members who would then repay it in lump sums or instalments.
. Counsel asked the investigating officer whether there was a net sum that was considered to constitute the proceeds of crime, taking away the personal injury claims that were accounted for. The answer was that the view is taken that once monies are diluted by the proceeds of crime, the entirety of the amount becomes the proceeds of crime.
. It may be noted that the credit union accounts and the Irish Life account were preserved initially by the making of an order by a superintendent for a seven day period and thereafter by applications at 20 day intervals to the District Court pursuant to s.17 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. Following the matter being sent forward for trial on indictment, the monies were preserved by virtue of an order of the High Court under s.24 of the Criminal Justice Act 1994, pending the outcome of criminal proceedings. As the Criminal Assets Bureau were appointed as inspector of taxes, they achieved an attachment order over all the funds held in his name, in addition to the High Court order preserving the money. The intention was that, following the conclusion of the proceedings, the sum of €115,234 which had been frozen would be forfeited by CAB on foot of the attachment order in respect of the outstanding liabilities to revenue, leaving a balance of €93,286.37 for which the respondent was liable. There also remained the social welfare overpayment of €433,665.30 in respect of which he entered a formal agreement with the Department of Social Welfare to receive a deduction of social welfare payments going forward.
. The book of evidence was served in April 2019 and the trial was estimated (in respect of all three accused) to last three months. In the event, no trial date was actually fixed because of the Covid pandemic, and each of the accused men ultimately entered pleas of guilty in May 2022. The officer gave evidence that they were “very valuable pleas in light of the charges against the accused”. He said that the State would not have been in a position to present evidence of specific acts of criminality underlying the money laundering and that they were relying on the presumptions under the Act to prove the case. They were unexplained monies in that there was no source of income for them other than social welfare.
. In cross examination, the officer accepted that the case could be contrasted with other money laundering cases where it could be shown that the assets were directly the proceeds of a particular crime or criminal enterprise, and that this would have made it a more difficult case to prove to a jury. The officer said that he was in a position to exclude criminality of a national nature involving drugs or firearms; this was in response to a specific question from counsel which was phrased in that precise manner.
. He also accepted that the invoices that were gathered showed that the respondent had worked for an engineering firm who were building the Kilkenny ring road adjacent to his home and that money was paid during the completion of that work.
. He accepted that the respondent was a family man, was one of a number of children, and had a number of children himself. He had presented no difficulty to the Gardai during the investigation and was cooperative, other than standing on his right to silence in interview. He was at the time of sentence a 47-year-old man. He accepted that the respondent had never made any application to have monies drawn down or to set aside the orders made. In addition to the guilty pleas, there was engagement by the entire family including the respondent with the Criminal Assets Bureau. An agreement had been reached, which dealt with both his tax and welfare liability. The social welfare overpayment was in an amount of 433, 665.03. There was an agreement that there would be a sizeable reduction in the social welfare payments to be made to him on an ongoing basis to allow recompense to be made.
. The respondent had 15 previous convictions. These included trespass in 2017, assault causing harm in 2014, public order offences, a District Court conviction for possession of knives or other articles in 2010, breach of the peace, production of an...
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