Paul Begley v DPP

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 15 February 2013
• Neutral Citation: [2013] IECCA 32
• Date: 15 February 2013
• Docket Number: [C.C.A. No. 95 of 2012]

[2013] IECCA 32

THE COURT OF CRIMINAL APPEAL

McKECHNIE J.

DE VALERA J.

MC GOVERN J.

C.C.A. No. 95/12

Begley v DPP

BETWEEN

PAUL BEGLEY

APPELLANT

AND

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

RESPONDENT

CUSTOMS CONSOLIDATED ACT 1876 S186 (UK)

FINANCE ACT 1963 S34

FINANCE ACT 2001 S177

FINANCE ACT 1997 S89

FINANCE ACT 2001 S240

DPP v CUNNINGHAM 2002 2 IR 712

CRIMINAL JUSTICE ACT 1999 S29

DPP v DUFFY 2009 2 IR 395

DPP v ADAMS UNREP CCA 11.1.05 (EX TEMPORE)

DPP v LOVING 2006 3 IR 355

DPP v R McC 2008 2 IR 92

DPP v PERRY unrep CCA 29.7.2009 2010/17/4108 2009 IECCA 1612

DPP v MCCORMACK 2000 4 IR 356

DPP v M 1994 3 IR 306 1994 2 ILRM 541 1994/9/2641

DPP v KELLY 2005 2 IR 321

DPP v DUFFY 2009 3 IR 613

DPP v MURRAY UNREP CCA 27.2.2012 2012/13/3623 2012 IECCA 60

AG, PEOPLE v O'DRISCOLL 1972 1 FREWEN 351

HEALY, STATE v DONOGHUE 1976 IR 325

DPP v TIERNAN 1988 IR 250

DPP v HUGHES UNREP CCA 29.11.2012

DPP v D UNREP CCA 21.5.2004 2004/15/3386 2004 IECCA 8

CRIMINAL JUSTICE ACT 1999 S29

DPP v G 1994 1 IR 587

CRIMINAL JUSTICE ACT 1999 S29(2)

DPP v REDMOND 2001 3 IR 390

DPP v CUNNINGHAM 2002 2 IR 712

EEC REG 2658/1987 ANNEX I

EEC REG 1006/2011 COMMISSION REG 27.9.2011

CRIMINAL LAW

Sentence

Severity - Tax fraud - Importation of garlic - Maximum sentence - Approach to sentencing - Exceptional circumstances - Whether sentencing court erred in consideration of factors offered as mitigation - Whether exceptional circumstances to warrant maximum sentence despite mitigating factors - Whether imposed sentence excessive - The People (Director of Public Prosecutions) v R McC [2007] IESC 47, [2008] 2 IR 92 followed - The People (DPP) v Tiernan [1988] IR 250; The People (Director of Public Prosecutions) v Hughes [2012] IECCA 85, (Unrep, CCA, 29/11/2012) and The People (Director of Public Prosecutions) v Loving [2006] IECCA 28, [2006] 3 IR 355 approved - Director of Public Prosecutions v G [1994] 1 IR 587; The People (Attorney General) v O'Driscoll (1972) 1 Frewen 351; The People (Director of Public Prosecutions) v Cunningham [2002] 2 IR 712; The People (Director of Public Prosecutions) v D [2004] IECCA 8, (Unrep, CCA, 21/5/2004); The People (Director of Public Prosecutions) v Duffy [2009] IECCA 20, [2009] 2 IR 395; The People (Director of Public Prosecutions) v Duffy [2009] IEHC 208, [2009] 3 IR 613; The People (Director of Public Prosecutions) v Kelly [2004] IECCA 14, [2005] 2 IR 321; The People (Director of Public Prosecutions) v M [1994] 3 IR 306; The People (Director of Public Prosecutions) v McCormack [2000] 4 IR 356; The People (Director of Public Prosecutions) v Murray [2012] IECCA 60, [2012] 2 IR 477; The People (Director of Public Prosecutions) v Perry [2009] IECCA 161, (Unrep, CCA, 29/7/ 2009); The People (Director of Public Prosecutions) v Redmond [2001] 3 IR 390 and The State (Healy) v O'Donoghue [1976] IR 325 considered - Customs Consolidation Act 1876 (Ch 36), s 186 - Sentence reduced (95/2012 - CCA - 15/2/2013) [2013] IECCA 32

People (DPP) v Begley

Facts: The hearing concerned an application for leave to appeal against a sentence for attempted fraudulent evasion of customs duty and actual evasion contrary to s. 186 of the Customs Consolidation Act 1876. It was claimed that the sentence was inappropriately severe and excessive, and had failed to take into account the existing mitigating factors.

After discussing general sentencing principles and those relevant to tax fraud cases in particular, the court held that the mitigating factors in the instant case had either been overlooked or given insufficient weight when determining the sentence imposed, DPP v. Perry [2009] IECCA 161 considered.

The appellant had shown high levels of admission and cooperation, made an early plea, agreed to repay the sum in a set amount of time, shown genuine remorse and been considered by the trial judge unlikely to reoffend.

No reasons had been given as to why the case was deemed to fall within the highest culpable conduct for this type of offence, and 'rare and exceptional circumstances' had not been provided , DPP v. R.McC. [2008] 2 IR 92 considered.

The sentence was held not to be proportionate nor appropriate for the crimes committed or the profile of the offender. An error of principle had been made, and the sentence of six years for the offences was therefore set aside and substituted with a reduced one of two years, DPP v. Murray [2012] IECCA 60 distinguished, The People (DPP) v. Hughes (Unreported, Court of Criminal Appeal, 29th November, 2012) considered.

1 Mr. Justice William M. McKechnie on the 22nd day of January, 2013.

2 1. On the 12 ^th January, 2012 the appellant, on arraignment, entered a guilty plea on counts 1, 6, 10, and 11 of the indictment which was accepted by the Director of Public Prosecutions on a full facts basis. There were in all a further seven similar type offences alleged against him. Count no. 1 related to the attempted fraudulent evasion of customs duty, with all other counts being that of fraudulent evasion, contrary to s. 186 of the Customs Consolidation Act, 1876 as amended by s. 34 of the Finance Act, 1963, s. 177 of the Finance Act, 2001, s. 89 of the Finance Act, 1997, and s. 240 of the Finance Act, 2001. The supporting particulars were the same on all charges save for dates, weight of goods, and estimated value. Count no. 2 is representative of the conduct complained of. It reads:

"Paul Begley, on the 11 ^th day of September, 2007, at New Custom House, Dublin in the County of the City of Dublin, was concerned in a fraudulent evasion of customs duty chargeable on importation which had not been paid on certain goods to wit, 19,304 kilograms of garlic, which goods had an estimated value of €34,515,55."

3 2. At the sentencing hearing which took place on the 9 ^th March, 2012, the learned trial judge, having heard submissions from both the prosecution and by way of mitigation from the defence, imposed a sentence of five years on count no. 6, which was the maximum provided for by statute, one year on count no. 10, to operate consecutive to the sentence first mentioned, took the remaining charges into account, and made a consequential disqualification order, preventing Mr. Begley from acting as a director of any company for a period of five years.

4 3. The application for leave to appeal which stands before this Court relates to severity of sentence. Three essential grounds are relied upon, details of which are later set out in this judgment. By reference to the submissions offered in support of each of these grounds, it is asserted for a variety of reasons that in the circumstances the sentence was both inappropriate and excessive.

5 4. In the event of this Court finding that the imposed sentence was excessively severe, it has been asked to defer its decision on what the appropriate sentence should be, until the appellant has had an opportunity of making further submissions on that issue. As such a practice is provided for in the event of an error of principle having been established the Court will, if the occasion should arise, adjourn as so requested. See The People (D.P.P.) v. Cunningham [2002] 2 I.R. 712.

General Background:

6 5. The following is a summary of the prosecution evidence given by Mr. Denis Twohig, an officer of the Revenue Commissioners, to the trial court:

7 · Mr. Begley is a 47 year old married man with children. He is a Director of Begley Brothers Limited, a company which imports and distributes fruit and vegetables.

8 · On the 9 ^th October 2007 a revenue officer at Dublin Port examined a container imported from China in the name of the company.

9 · According to the accompanying paperwork it should have contained 18 tonnes of apples and 2 tonnes of garlic.

10 · In fact the consignment consisted purely of garlic, being approximately 21 tonnes in weight.

11 · At that time, the customs duty on apples was 9% whereas that on garlic imported from third countries was 9.6% of the value plus €120 per 100 kilograms of garlic.

12 · Customs officers then looked back over previous consignments shipped to Begley Brothers Limited and found documentation referring to other mixed importations of apples and garlic.

13 · On the 10 ^th October 2007 a search was carried out at the premises of the company on foot of a validly obtained search warrant.

14 · The appellant was present at the time of the search and acknowledged to the revenue officers involved, that he was responsible for all importations of garlic from China.

15 · He then provided:

16 · - details of his contact with the suppliers and correspondence which passed between both of them; and

17 · - a series of emails containing details of what was actually brought in as opposed to what was declared for the purposes of duty.

18 · The emails concerning these consignments of garlic covered a period from September 2006 to October 2007, approximately.

19 · The consignments referred to in the emails could be matched with customs declarations that had been made when the relevant consignments actually came into the country.

20 · On being questioned the appellant stated that he had first declared other commodities in place of garlic in 2003, which was also the year when the company had first applied for an import licence.

21 · Subsequent to the search, the appellant volunteered additional information, detailing shipments from China and otherwise provided much of the documentation which ultimately formed the book of evidence.

22 · The appellant co-operated fully with the investigation.

23 · Two years later, a further search under warrant was carried out at the warehouse premises of Begley Brothers Limited in Blanchardstown and full cooperation was likewise provided on that occasion.

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