The Director of Public Prosecutions v Budash

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice MacGrath
• Judgment Date: 04 February 2025
• Neutral Citation: [2025] IECA 113
• Docket Number: Record No: 250/2024

In the Matter of An Application Pursuant to Section 2 of the Criminal Justice ACT 1993

Between/

The People (At the Suit of the Director of Public Prosecutions)

Applicant

and

Liudmyla Budash

Respondent

[2025] IECA 113

McCarthy J.

Burns J.

MacGrath J.

Record No: 250/2024

Bill No.: DUDP0918/2024

THE COURT OF APPEAL

Sentencing – Money laundering – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Ms Budash, on 19 July 2024, came before the Dublin Circuit Criminal Court on a signed plea of guilty to a single count of money laundering contrary to s. 7(1)(a)(ii), s. 7(1)(b) and s. 7(3) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. On 31 July 2024, the sentencing judge nominated a headline sentence of three years imprisonment. This was reduced by one year for mitigation, leaving a sentence of two years of which nine months was suspended. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review of the sentence imposed on the respondent on grounds of undue leniency. Two grounds were set forth: (1) that the sentencing judge erred in law, fact and principle in identifying a headline sentence of three and a half years and failed to have regard to the serious nature of the offending (including the level of monies involved, the role played by the respondent and the resulting benefit to a criminal organisation), and the need for a deterrent element in sentencing; and (2) that the sentencing judge erred in fact, law and principle by imposing a post-mitigation sentence of two years and/or suspending the final nine months of the sentence. It was submitted that excessive weight was given to the mitigating factors and that the sentencing judge erred in affording excessive weight to the early plea of guilty in circumstances where the respondent was caught red-handed.

Held by the Court that a headline sentence of three and a half years was too low and constituted a substantial departure from the norm; it was outside the discretion available to the sentencing judge and thus amounted to an error in principle. The Court held that the nomination of that headline sentence had a knock-on effect on the final sentence ultimately imposed, which, the Court was also satisfied, was too low and constituted a substantial departure from the norm within the meaning of s. 2 of the 1993 Act, which was unduly lenient thereby warranting intervention. The Court was satisfied that the sentence must be quashed and the respondent must be sentenced de novo.

The Court held that, given the seriousness of the offending, measured by the culpability of the respondent (by reference to the amount of money involved and her role) and the harm caused to the public (in that regard the Court re-iterated the sentiments expressed in DPP v Carew [2019] IECA 77), the headline sentence must be within the mid-range of offending and towards the middle of that range, such as to warrant the nomination of a headline sentence of seven years in prison. The Court was satisfied that there ought to be a reduction from the headline sentence of two years and six months, thus resulting in a custodial sentence of four and a half years in prison. The Court also made an order for the confiscation of the monies.

Application granted.

JUDGMENT of the Court delivered by Mr. Justice MacGrath on the 4 ^th of February 2025 .

Introduction

1 . This is an application by the Director of Public Prosecutions (“the applicant”) pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review of the sentence imposed on Ms Budash (“the respondent) at the Dublin Circuit Criminal Court on the 31 ^st July 2024 on grounds of undue leniency.

2 . On the 19 ^th July 2024, the respondent came before the Circuit Criminal Court on a signed plea of guilty to a single count of money laundering contrary to s. 7(1)(a)(ii), s. 7(1)(b) and s. 7(3) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. The offending occurred on 12 ^th April 2024. The maximum sentence in respect of this offence is 14 years in prison. On the 31 ^st July 2024, the sentencing judge nominated a headline sentence of three years imprisonment. This was reduced by one year for mitigation, leaving a sentence of two years of which nine months was suspended.

3 . The application is advanced on two grounds. First, the sentencing judge erred in principle in identifying a headline sentence of three and a half years and, second, by thereafter suspending the final nine months of that sentence. In summary, it is contended that the nominated headline sentence too low, outside the range of discretion available to the sentencing judge and not in accordance with guidance provided in respect of sentencing for such offending. While it is accepted that credit was warranted for the respondent's early plea of guilty, it is contended that the sentencing judge erred in principle in affording excessive weight to mitigating circumstances, including the plea of guilty, in circumstances where the respondent was caught red-handed.

Circumstances of the Offending

4 . Det. Garda Susan Plunkett gave evidence to the sentencing judge that on the 12 ^th April 2024, the Garda National Drugs and Organised Crime Bureau was conducting an operation in the Temple Bar area of Dublin. On foot of confidential information received, there was reason to believe that the respondent would be present in that area with a large quantity of drugs and/or cash. The respondent was located on Crampton Quay. She had a suitcase in her possession. The suitcase contained €491,955 in cash. The money had been vacuum-packed into individual bundles and bound with elastic bands.

5 . The respondent was detained and interviewed. She admitted that the suitcase belonged to her. She gave her address as a hotel in Dublin where she was temporarily residing. A warrant was obtained to search that premises. A vacuum packing machine and elastic bands were found. The respondent's mobile phone, which was on her person at the time of the arrest, was analysed, and photographs of the cash were found on the phone.

6 . Det. Garda Plunkett's evidence was that the respondent appeared to have arrived in this country on the day prior to the offending. She does not reside in Ireland. It was the belief of gardai that the respondent was in Ireland solely for the purpose of collecting and moving cash. Under cross examination, Det Garda Plunkett said that, at the time of offending, the respondent was living in France, having from Ukraine following the outbreak of the Russia-Ukraine War in February 2022. She has three children: two young twin girls born in 2017, and a teenage son.

7 . The following exchange between counsel and Det. Garda Plunkett took place regarding the level of agency or control of the respondent in the offending;-

“Q. And I think as far as this offence is concerned, you'd be satisfied that she's being controlled by somebody else?

A. Well, Judge, it's not just — there's a few people involved, Judge. To be able to hand over cash like this. You were giving directions to one person and another person is given who they're going to meet. So, it's not just her on her own, Judge. I believe there is others involved.”

8 . The respondent has been in custody since the 12 ^th April 2024. At the time of sentencing she was 46 years old. She has no previous convictions.

Plea in Mitigation

9 . Counsel for the respondent submitted to the sentencing court that this was the first time Ms Budash had come before the courts, in any jurisdiction. He was instructed that the respondent was well-educated, possessing a degree in civil engineering from Kiev National University and a post-graduate qualification in management and accountancy, a field in which she was employed until she had family. Missile attacks on the area where the respondent lived in the suburbs of Kiev displaced her and her family. They eventually fled Ukraine and went to France.

10 . Counsel for the respondent informed the sentencing judge that the respondent did not speak French, and had no contacts, employment, or means of support in that jurisdiction. He submitted that:-

“[T]ragically for her and her family, [the respondent] fell in with the wrong kind of people which led directly to this offending and directly to her being in Dublin with this enormous amount of cash. She knew what she was doing. She knew it was illegal and her attitude to the offence has been apparent from the outset of her being arrested. The Court has heard that she was co-operative with the gardaí, she made admissions in relation to it.

…

Clearly the Court will be concerned about the level of money involved, and the necessary inference that it's connected with serious criminality. And of course, the starting point in relation to that would be a custodial sentence. But what I would ask the Court to do before reaching the conclusion that only a custodial option is appropriate, to consider all the various other matters that I've put before the Court in terms of how Ms Budash comes to be here today. The series of misfortunes that had nothing to do with her, but effectively disrupted her life to an incredible extent, something that perhaps is very difficult for any of us to imagine, given the ordinary nature of her (sic) lives, and that her life and her family's life was completely turned upside down. She recognises, and this is, I suppose, reflected by her attitude to the offence and the early guilty plea, she recognises that she took a wrong option in order to try to provide for her family. But it is something, I suppose, that one understands, given the displacement and the difficult circumstances in which she found herself. What I would ask the Court to do is to perhaps reflect on whether or not a...