Court of Criminal Appeal reduces excessive sentence for tax fraud from five to two years based on mitigation.

THE COURT OF CRIMINAL APPEAL

C.C.A. No. 95/12

McKECHNIE J.

DE VALERA J.

MC GOVERN J.

BETWEEN

PAUL BEGLEY

APPELLANT

AND

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

RESPONDENT

JUDGMENT of the Court delivered the Mr. Justice William M. McKechnie on the 22nd day of January, 2013.

1. On the 12th 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 11th 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.”

2. At the sentencing hearing which took place on the 9th 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.

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.

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:

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:

• 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.

• On the 9th October 2007 a revenue officer at Dublin Port examined a container imported from China in the name of the

company.

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

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

• 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.

• 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.

• On the 10th October 2007 a search was carried out at the premises of the company on foot of a validly obtained search

warrant.

• 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.

• He then provided:

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

- a series of emails containing details of what was actually brought in as opposed to what was declared for the

purposes of duty.

• The emails concerning these consignments of garlic covered a period from September 2006 to October 2007,

approximately.

• 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.

• 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.

• 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.

• The appellant co-operated fully with the investigation.

• 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.

• It was accepted by Revenue that the supplier in China had facilitated the operation by providing false documentation.

• As a result of the investigation it was considered that approximately 1,413 tonnes of garlic valued at €1.1 million were

imported from China during the period in question. It was estimated that €1.6 million in duty was thus evaded.

• The value of the goods on the four counts to which pleas were entered was approximately €85,000:

- in respect of the first count the attempted evasion amounted to €35,352.02.

- in respect of the sixth count the attempted evasion amounted to €12,373.83.

- in respect of the tenth count the attempted evasion amounted to €18,309.92.

- in respect of the eleventh count the attempted evasion amounted to €19,324.94

• The appellant came to an arrangement with the Revenue to repay the sum of €1.6 million in instalments.

• The process of restitution was commenced with the payment of a lump sum of around €219,000 to Revenue in

December 2009 with a payment schedule of €24,000 per month up to December 2011 and €33,000 per month thereafter

being subsequently agreed upon.

• All payments to date have been made promptly and the outstanding balance is on course to be fully discharged within

the agreed timeframe ending in November 2013. At the date of sentence there remained around €700,000 to be paid.

Judge’s Ruling:

6. The learned trial judge referred with apparent acceptance, to some matters advanced in mitigation and having disregarded a

submission that the rate of customs on garlic was arbitrary and unfair, as was alleged, holding that such was a matter for the

Oireachtas, went on to highlight the gravity of the offences, which he said, with malice aforethought, were embarked upon by the

appellant for the purposes of defrauding the Revenue, and in the process, the people of Ireland of their rightful taxes. He then

continued:

“So, what he did was grave. He entered into a huge excise evasion scheme and I’m afraid he must pay the ultimate price

for that. … I’m sentencing Mr. Begley on two principles alone: punishment for Mr. Begley and deterrence for others who

may attempt to enter upon such a scheme.” (emphases added)

7. Having referred to some other matters, not of immediate relevance, the learned judge went on to say to that he was entirely

satisfied that Mr. Begley was a “totally rehabilitative man” and would never bother the courts again. However, as this type of crime is

hard “to detect, …the only way to deter …[it] …is to impose a reasonably severe punishment on those who are detected …”. The

sentences as above outlined were then imposed.

Submissions of the Appellant:

Ground No. 1:

8. The learned sentencing judge erred in law and/or in fact, both in imposing the maximum sentence of 5 years on count no. 6 and in

imposing a sentence of 1 year on count no. 10, to run consecutive to the five year sentence, given the particular circumstances of

the case. In the process, the learned judge either did not consider all the mitigating factors, or if he did he simply did not attach to

them the appropriate weight.

9. It is claimed that in view of the number of positive and favourable factors identified on behalf of the appellant, which the Court

was inclined to accept, the particular sentence should have been much less severe than what it was. To impose the maximum

sentence permitted on count no. 6, in circumstances where there has been a guilty plea was erroneous. A maximum sentence

following a guilty plea should only be applied where there are unusual or exceptional circumstances by way of aggravation (see s.29

of the Criminal Justice Act 1999).

10. Cases where such sentences have been imposed constitute rare exceptions to the general practice (see DPP v. Duffy [2009] 2

I.R. 395 (“Duffy”), DPP v. Adams (Unreported, Court of Criminal Appeal, 21st December 2004) (“Adams”) and DPP v. Daniels

(Unreported, Court of Criminal Appeal, 28th July 2006) (“Daniels”)). This case falls well short of reaching any kind of threshold which

would justify such level of sanction. Furthermore, there is a duty on the trial court when imposing a maximum sentence to specify the

type of circumstances giving rise to such decision and to explain how and in what way the presenting case meets the required

criteria. There is no indication whatsoever in this regard in the ruling of the learned judge.

11. Support for the above propositions can be found in the cases of DPP v. Loving [2006] 3 I.R. 355 (“Loving”), and in DPP v. R.McC.

[2008] 2 I.R. 92 (“R.McC.”).Whilst it is accepted that this Court has from time to time upheld the imposition of a mandatory sentence,

even on a guilty plea, these occasions can be regarded as rare exceptions, such as to be found in the cases mentioned in the

preceding paragraph.

12. It is a well settled aspect of sentencing principles that an early plea is more valuable than a later one, particularly if the accused

person has cooperated, fully as in this case, with the investigation. Noting the resulting benefits to the Director of Public

Prosecutions, it is claimed that this factor should have had an important mitigating influence on the actual sentence imposed.

Evidently, no allowance was made for it. Consequently the sentence specified on count no. 6, with the addition of a consecutive

element on count no. 10, represents an error of principle.

Ground No. 2:

13. The learned sentencing judge erred in law and/or in fact in the manner in which he relied upon the principle of deterrence and in

its application as reflected in the sentence. For the sake of clarity it should be stressed that what is complained of, under this

heading is not reliance “per se” on such principle, but rather its application to the exclusion of the facts surrounding the offence and

the appellant's personal circumstances.

14. The following passage from O’Malley was cited to support this suggested imbalance, when the trial judge was dealing with what

otherwise is acknowledged as being a legitimate factor for consideration, namely deterrence. The author states:

“However, the fact remains that within a system that purports to treat offenders as autonomous beings with entitlement

to respect for their human dignity, a purely instrumental approach to punishment is hard to defend. This does not

necessarily entail the abandonment of all deterrent or other utilitarian objectives so long as punishment remains

proportionate to the offence.” (O’Malley, Sentencing Law and Practice, 2nd ed., (Dublin; 2006), para. 2.14 (“O’Malley”)).

See also DPP v. Perry [2009] I.E.C.C.A. 161 (“Perry”).

15. It is further submitted that what the trial judge said in this regard, which is quoted at paras. 6 and 7 supra, shows at least to

some extent, that he had bound himself to the principles of punishment and deterrence to the exclusion of personal circumstances.

This is not permitted and therefore such an approach also constitutes an error of principle.

Ground No. 3:

16. The sentence imposed was disproportionate in all the circumstances.

17. It is claimed on behalf of the appellant that it is a well-established principle that the sentence must be proportionate to the

circumstances of the offence and the offender. DPP v. McCormack [2000] 3 I.R. 356 is but one of many cases which establishes this

point. Lack of consideration of the factors involved is a significant departure from case law (see DPP v. M [1994] 3 I.R. 306 (“M”) and

DPP v. Kelly [2005] 2 I.R. 321 (“Kelly”)), and merits appellate intervention.

18. In conclusion, it is asserted that on any one or more of these grounds, the appeal should be allowed.

The Response of the Director of Public Prosecutions:

19. It was submitted on behalf of the prosecution that the offences were on a large scale and took place over an extended period of

time; that persistence, premeditation and planning were all elements of the activity complained of; that such were motivated only by

greed; that this type of offence was difficult to detect and the offending only came to an end due such to detection; that there was

a significant breach of trust involved; and that the offences gave the appellant a considerable competitive advantage over his

competitors. Consequently, the offences were at the higher end of the scale for this type of offence.

20. O’Malley was again cited to support the general thrust of this point. At para. 14.10 it is stated:

“Persistence, purpose and impact are among the key factors to be considered in fraud sentencing. Courts are most likely

to impose heavy prison sentences when there has been a persistent pattern of fraudulent conduct. They also have regard

to the purpose of the fraud, and to the quality and degree of trust reposed in the offender. Where monies have been

misappropriated for purely selfish purposes in order to fund lavish lifestyles, offenders can expect little mercy.”

21. With regard to the guilty plea, it was not accepted that it could be described as being an early one: the same was offered only

one week before the trial began. It was only when the matter was returned for trial did the appellant indicate a positive attitude in

this regard. Prior to that his actions in seeking full disclosure, which were agitated at considerable length before the trial court, were

consistent only with an intention to defend the case. Therefore, such has less weight than what is argued for.

22. It is said by the Director of Public Prosecutions that where an offence takes place repeatedly over an extended period of time it is

impossible to view the offender as of “good character” and the behaviour as being “out of character” (see DPP v. Duffy [2009] 3 I.R.

613, “the Citroen cartel case”). In this case therefore, this factor, which is usually a mitigating one, must not be given any

considerable weight.

23. In further response, the Director of Public Prosecutions, whilst acknowledging that there was “…some merit to the criticisms of the

… judge’s approach and the manner in which he structured the sentence…”, nonetheless went on to urge:

(i) that the consecutive element of the sentence was within the judge’s discretion to so impose;

(ii) that given the seriousness of the offences a cumulative sentence of six years was warranted;

(iii) that as the offences took place over many years, this is not a one transaction case for the purposes of sentence;

and

(iv) that the essential issue for the appellate court was to determine whether or not the sentence of six years was

disproportionate.

24. In addition, DPP v. Murray [2012] I.E.C.C.A. 60 (“Murray”) was cited as a precedent for the contention that when re-revaluating

a sentence that may be deemed unduly severe, the appropriate cumulative sentence should first be considered, and secondly for its

important contribution to the question of deterrence.

25. Finally it was stated that in cases of offences involving the public purse deterrence plays an important value in the sentencing

process and that in recent years there has been a pronounced trend towards the imposition of substantial custodial sentences for

revenue offences of all kind. Therefore the overall sentence can be stood over.

Mitigating Matters Considered:

26. Before dealing with the grounds of appeal, it should be observed that there is somewhat of a contradiction in the submissions of

the appellant, albeit perhaps not of particular significance. It is first claimed that the sentencing judge did consider all mitigating

factors but simply failed to accord them, sufficient weight. It is later suggested that the judge did not consider all of the factors. This

can most likely be explained as being due to insufficient clarity of language. For the sake of accuracy, the Court will set out, by

reference to the transcript, the mitigating factors put forward by counsel during the course of the trial and those which the judge

specifically mentioned during the sentencing hearing.

27. The following matters were identified in the submissions, as being referable to the appellant or his circumstances and were, as

part of their elaboration, spoken at different times and in a variety of ways:

• that of his good character;

• that he was good and generous man whose deeds include helping the homeless;

• that he is an asset to his family and an asset to the country;

• that he was instrumental in overseeing a major development of the family business;

• the absence of any previous convictions;

• the unlikelihood of any re-offending with full rehabilitation having been achieved;

• that the idea in the first instance for the evasion, had originated with the Chinese suppliers; and

• that of his full cooperation with the Revenue when the offences were uncovered.

28. The sentencing judge made no reference to the following factors though agitated by counsel on behalf of Mr. Begley:

• restitution, achieved with the assistance of a significant loan made by the company to the appellant for this purpose;

• his good standing with the Revenue apart from this offence;

• his immediate guilty plea in the District Court, and his later plea in the Circuit Criminal Court;

• his remorse demonstrated by the early plea and restitution; and

• the consequential disqualification of five years which followed conviction.

General Sentencing Principles:

29. The essential principles of sentencing law are firmly established as part of our criminal jurisprudence and have been consistently

applied, as a matter of course, for many years. At the level of generality it can be said that all sentences will result from a

consideration of the gravity of the offence and of the circumstances in which it has been committed: from an appraisal of the

personal situation of the accused person and from the assignment, to all mitigating factors, of a fitting value. Such an exercise should

result in the sentence being proportionate to the crime and the person: if the result is otherwise, it must be adjusted so that at the

end of the process an appropriate sentence is imposed.

30. There are many elements involved in sentencing both at a general and specific level. Each has its own justifying reason. Some

evidently are more influential than others: some may apply in isolation whilst others are best suited to have a cumulative effect. Not

all will arise in any given case but all are part of an overall armoury, designed to deal with a multitude of different circumstances,

relative to both crime and criminal, which when properly used, will result in the imposition of a just sentence in all circumstances.

31. A judgment of some importance in this regard, which expressly directed the Court’s attention, not only to the crime but also to

the offender, is that of Walsh J. in The People (Attorney General) v. O’Driscoll [1972] 1 Frewen 351 where it was stated at p.359:

“The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to

induce him in so far as possible to turn from a criminal to an honest life and indeed the public interest would be best

served if the criminal could be induced to take the latter course. It is therefore the duty of the courts to pass what are

the appropriate sentences in each case having regard to the particular circumstances of that case – not only in regard

to the particular crime but in regard to the particular criminal.” (emphasis added)

32. This requirement also has a constitutional basis being that as identified by Henchy J. in The State (Healy) v. Donoghue [1976] I.R.

325 at p. 353:

“When the Constitution states that "no person shall be tried on any criminal charge save in due course of law"—(Article

38. s. 1), that "the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and

vindicate the personal rights of the citizen"—(Article 40, s. 3, sub-s. 1), that "the State shall, in particular, by its laws

protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and

property rights of every citizen"—(Article 40, s. 3, sub-s. 2), and that "no citizen shall be deprived of his personal liberty

save in accordance with law"—(Article 40, s. 4, sub-s. 1), it necessarily implies, at the very least, a guarantee that a

citizen shall not be deprived of his liberty as a result of a criminal trial conducted in a manner, or in circumstances,

calculated to shut him out from a reasonable opportunity of establishing his innocence; or, where guilt has been

established or admitted, of receiving a sentence appropriate to his degree of guilt and his relevant personal

circumstances.” (emphasis added)

See also Denham J. in M at p. 316, as an example of one of numerous subsequent cases which endorsed these principles.

33. Consequently, the general position is not in doubt; therefore these guiding principles will permeate the views of all courts when

passing sentence on convicted persons.

34. When called upon to apply such principles, the following passage from the judgment of Kearns J. when speaking for the Court in R.

McC. succinctly captures what is the preferred if not the only approach in this regard:

“This requires that any sentencing court should conduct a systematic analysis of the facts of the case, assess the

gravity of the offence, the point on the spectrum at which the particular offence or offences may lie, the circumstances

and character of the offender and the mitigating factors to be taken into account – all with a view to arriving at a

sentence which is both fair and proportionate.” (p. 104)

35. The judge went on to say that “[t]he general approach outlined above was even more emphatically endorsed in the judgment of

the Court of Criminal Appeal in Kelly. This above passage is well representative of the approach most favoured in dealing with

sentencing, but it is also important to bear in mind the following clarifying aspect of this view: Kearns J. added at p. 104:

“… [this] … is not to say that every step in the sentencing process has to be particularised in some formulistic or rigid

way by the trial judge, but rather that the basis for the sentence imposed should be both apparent and consistent with

these principles.”

This Court fully supports what is herein stated.

36. Finally, in a general context, it is also appropriate to make reference to what was said in the M at p.315 where Egan J. said:

“It must be remembered also that the reduction in mitigation is not always to be calculated in direct regard to the

maximum sentence applicable. One should look first at the range of penalties applicable to the offence and then decide

whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an

appropriate reduction made.”

Tax Evasion Cases: Are Such to be Treated Differently?:

37. It has not been suggested by the Director of Public Prosecutions that cases involving tax evasion such as that presenting before

this Court, should be categorised separately from other offences for sentencing purposes. However, reference has been made to the

Murray case which might give the impression that this is so. In that case, on a guilty plea and following immediate admissions on

arrest, the accused person received a 3 year sentence on count no. 1, of falsely obtaining a passport, and 6 months on count no. 2,

concurrent with 24 further sentences of 6 months on each of the remaining sample counts, all to run consecutive to each other and

concurrent to the three year sentence. In all he received twelve and a half years imprisonment. Nothing turns on the passport

sentence but it was claimed that the remaining sentences were grossly excessive and thus, that the trial court had erred in principle.

38. This was a case of social welfare fraud which lasted several years and involved an elaborate and sophisticated scheme which

resulted in the fraudulent misappropriation of about €250,000 through diverse claims. The appellant, though Irish, lived in Thailand and

travelled to this jurisdiction specifically for the purpose of committing these offences. When arrested and as the investigation

unfolded, false social welfare cards, bus passes, medical cards, and a number of false British driving licences, all purchased on the

black market in Thailand were found and much more besides. Part of the scheme involved the appellant in identifying persons whom he

knew had emigrated permanently from Ireland and in obtaining details of their birth dates and other relevant information, such as their

mother’s maiden name. Armed as such he would then go to the office of the Registrar of Births, Marriages and Deaths and on the

payment of a small fee obtain a copy of the birth certificate for that individual. These were then presented to the Department of

Social Protection, which of course immediately lent an air of credibility to the applications subsequently made in the names of such

persons. In addition, whilst he himself had a genuine disability in his right arm, he exploited this by going to three different medical

practitioners, using three different aliases and procured three different medical certificates, all of which were then used to obtain

three different disability claims. In short, the lengths to which the appellant went to in order to perpetrate this deception were quite

staggering.

39. In the Court’s judgment, Finnegan J. reviewed the rationale behind the sentencing policy relative to different types of offences,

such as those committed against the person involving for example, an interference with one’s dignity or a violation of one’s integrity,

and against a person’s property, including one’s home, being either attended by violence or other aggravating factors or not.

Reference was made to crimes involving the loss of public revenue which the judge said may well be viewed much more seriously

today than previously given “[the] enormous demands on the public purse [caused by] the associated banking collapse and a

continuing structural public deficit” (para. 18). Having acknowledged how the Irish people have “stoically endured significant taxation

increases, reductions in social security payments, and retrenchment at all levels in the provision of social services, as the State

endeavours to restore an equilibrium in the public finances” (para.18), the learned judge identified tax evasion as a major threat to

social solidarity, which if allowed to become widespread could affect the fabric of society as we know it. “[D]eterrence” which he

described as a “necessary quid pro quo of social solidarity” was an important consideration in this regard as was “some element of

severity”, so as to ensure that rightful contributions made by law abiding citizens, will continue to be made to public funds, from

which social welfare and other payments are defrayed (para.21).

40. The Court then took the unusual step of suggesting “for the future guidance of sentencing courts”, that systematic frauds,

whether illegal tax evasion or social welfare fraud, or presumably otherwise affecting the public revenue “should generally meet with

an immediate and appreciable custodial sentence”. Ultimately in that particular case the Court of Criminal Appeal allowed the appeal

and substituted for that imposed, a sentence of nine years with one suspended (para. 22).

41. There is no doubt but that much of what is said in the Murray judgment is correct and that sentences for particular offences may

be viewed either with greater or lesser severity, depending inter alia on the period within which they are committed and the

circumstances prevailing at that time. However, it is most unlikely, even allowing for the narrow circumstances by which it is

suggested that an immediate custodial sentence may be appropriate, that the Court was offering guidelines of a general nature in this

regard, for to have done so would surely have breached what the Supreme Court said in The People (Director of Public Prosecutions)

v. Tiernan [1988] I.R. 250 (“Tiernan”), and further would likewise have been in conflict with several other decisions subsequently

given, to similar effect.

42. At p. 254 of the Tiernan judgment Chief Justice Finlay, with whom three other members of the Court agreed, firmly rejected any

question of guidelines, stating:

“Furthermore, having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose

a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few

criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is

appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.”

The remaining member of the court, McCarthy J. emphasised the necessity of the trial judge having “…a true judicial discretion as to

the sentence appropriate in any case” (p.257). See further the decision in Kelly where the individualism of such an approach was

once again highlighted. Therefore there cannot be any doubt as to what the correct approach is.

43. Although the Court in Tiernan offered the view that a substantial and immediate custodial sentence would usually be justified in

cases such as rape, this statement was made in the context that the same would result from the correct application of general

sentencing principles. In effect, the principles in question would give rise to and produce such a sentence. That of course is an

entirely different matter than suggesting that a particular sentence should follow, purely or essentially, from the nature of crime itself.

Such would be some form of prescriptive sentencing which is not part of current law. The true position we think is that there will be

some cases where an immediate sentence is justified and others where it will not be. Everything will depend on the crime, the

circumstances of its commission and the personal situation of the accused. In all cases however the ultimate conclusion will be

directed by general principles.

44. It therefore seems to this Court that the judgment should not be read as suggesting the establishment of any parallel rules on

sentencing, relative to such crimes or as contemplating any significant adjustment on how courts should value or weigh genuine

factors in mitigation. In many respects this is unsurprising, as within the existing structure of sentencing, there is sufficient flexibility

to deal with any changing circumstances or context, whatever the range may be. Therefore, whilst noting the importance of the

decision for its underlying analysis, it does not appear to this Court that the same either intended to, or in fact created, any

substantial departure from the existing principles and how such are applied. This is confirmed, at least in part, by the judgment itself

when the learned judge, immediately after the passage quoted at para. 40 above continued:

“… although naturally the sentence to be imposed in any given case must have appropriate regard to the individual

circumstances of each accused.” (at para. 22)

45. Support for this conclusion as to how the Murray decision should be viewed in this particular regard, is to be found in the

judgment of the Court of Criminal Appeal in The People (DPP) v. Hughes (Unreported, Court of Criminal Appeal, 29th November, 2012)

(“Hughes”). At para. 65, Fennelly J. noted:

“The court would add that People (Director of Public Prosecutions) v Murray does not and could not represent any

departure from or qualification of the generally applicable principles of sentencing, discussed earlier in this judgment.”

46. Even if our interpretation of Murray is open to debate, this Court would have significant concerns in advocating any blanket

approach in tax fraud cases. Such type offences are totally dissimilar to many others, including the more serious crimes against the

person. Secondly, the variation within such cases is great and whilst we note the self stated limitations of Murray, nonetheless

factors with little, if any, probative value to crimes against the person, such as restitution, may have a level of high legal significance

in fraud cases. Thirdly, at least in a broad sense, it is common public knowledge that in a great number of evasion cases many

defaulters are never prosecuted and frequently for good cause; instead their behaviour is dealt with on the civil side of the law or by

some Revenue scheme, involving as it might the payment of penalties and interest, as well as public disgrace via media identification.

Fourthly, factors such as admissions and pleas are a crucial part of the process, without which the prosecution of white collar crime

would be even more retarded than what it is presently. Fifthly, incentivising cooperation must never be lost sight of. Therefore, it

seems to this Court that in the absence of a wide ranging review on sentences, the current approach, which should continue is that,

individual cases must be dealt with individually.

47. In many respects the rationale behind Murray can be seen as contextual and when viewed in that light, has a direct parallel with

the raison d’être of the decision of the Central Criminal Court in the Citroen cartel case, in the context of competition cases.

48. Prior to the Citroen cartel case, and certainly prior to DPP v. Manning (Central Criminal Court, McKechnie J., 9th February, 2007)

(“Manning”), there was no case in this jurisdiction, on the criminal side, which outlined the history of anti-competition practices,

particularly as demonstrated by cartel activity. This may have given rise, or at least may have contributed to, the fact that courts

were markedly reluctant to impose jail sentences, even in quite serious cases. The Citroen cartel case sought to address this omission

by giving a context to such criminal behaviour. In this regard, the Court cited a passage from the judgment in Manning at para. 23:

“This type of crime is a crime against all consumers and is not simply against one or more individuals. To that extent it is

different from other types of crime: and while society has an interest in preventing, detecting and prosecuting all crimes,

those which involve a breach of the Competition Act are particularly pernicious.”

Having referred to competition crime as being particularly pernicious and as being aimed at the destruction of a fundamental economic

and political philosophy of Western democracies, namely free market capitalism, the Court continued, by citing Werden, at para. 24:

“Cartel activity is properly viewed as a property crime, like burglary or larceny, although cartel activity inflicts far greater

economic harm. Cartel activity robs consumers and other market participants of the tangible blessings of competition.”

49. The above was therefore a representation as to how this type of crime should be viewed much like what Murray did by reference

to tax fraud cases. However whilst the Court also had much to say about the “value” of mitigating factors in such cases it

nonetheless made clear that general consistent sentencing principles would apply: paras. 34 and 44 of the judgment. This Court,

consistent with the Citroen cartel case would adopt a similar approach to the instant case.

Specific Matters:

50. Against this background it will be convenient for the purposes of this appeal to discuss some particular issues, such as maximum

sentences and consecutive sentences, as well as a number of other well-known factors which were identified as part of the mitigation

plea advanced on behalf of Mr. Begley.

Maximum Sentence:

51. As is most common when conduct or activity is criminalised by statute, the provision in question specifies the maximum sentence

available, for infliction on a person who has been charged with that offence and whose guilt has been established by admission or

verdict. When structured in this way, as distinct from a provision which nominates a specific tariff for mandatory application, it then

becomes a matter for the court of trial to pass an appropriate sentence, having regard to the well-established and recognised

sentencing principles, as above outlined.

52. Experience has shown that conduct giving rise to any particular offence, indeed all offences, can in terms of seriousness or

gravity, vary greatly, as can the attendant level of culpability or degree of delinquency involved. Similar variations apply to the

convicted person and the personal position of the convict. Evidently, it cannot be said that one sentence fits all or that a penalty in

excess of the maximum can be prescribed. Therefore, a vast array of activity, capable of constituting the offence and multiple

circumstance variation relative to the offender, must be accommodated within the sentence range as provided for.

53. This situation of course is well known to, and within the contemplation of, the Oireachtas, which is presumed to desire that an

appropriate sentence will be passed on a person guilty of a particular offence. This inevitably means that the maximum sentence

allowable is intended only to reflect “the highest level of seriousness capable of being envisaged for that offence, both as to its

intrinsic quality and as to the circumstances in which it was committed” (Loving at pp. 365 and 366). One may add, for the sake of

clarity, the individual circumstances of the offender. The sentencing court must be satisfied that notwithstanding the personal

circumstances of the accused and despite appropriately weighting any and all matters of mitigation as offered, the offence in

question, by reason of its inherent nature and the attendant circumstances of its commission is such, as would within the

contemplation of the Oireachtas, be positioned at such point on the scale for that offence as would demand the maximum sentence.

Therefore, before a maximum sentence should be imposed, the court has to be satisfied that this threshold has been met.

Section 29 of the Criminal Justice Act 1999:

54. Prior to the decision in DPP v. D [2004] I.E.C.C.A. 8, it was not considered that s. 29 of the Criminal Justice Act 1999 (“the 1999

Act”) had any impact of significance on the longstanding practice of giving credit for mitigating factors such as an early plea,

admissions, expressions of remorse, etc., and that if the sentencing court failed to do so, the same would constitute an error of

principle. However, the Court of Criminal Appeal in that case held that there could be no error of principle if the learned trial judge was

satisfied that there were exceptional circumstances as would justify the maximum sentence. McCracken J. for the Court then

continued:

“In effect, this section outweighs any suggestion in the earlier cases that as a matter of principle a discount must be

given for an early plea of guilty.”

55. In R. McC., the issue came before the Supreme Court on a certificate from the Court of Criminal Appeal. The relevant portion of s.

29 reads:

“29(2) To avoid doubt, it is hereby declared that subsection (1) shall not preclude a court from passing the maximum

sentence prescribed by law for an offence if, notwithstanding the plea of guilty, the court is satisfied that there are

exceptional circumstances relating to the offence which warrant the maximum sentence.”

In the judgment of Kearns J. in this case there was no justification for the conclusion arrived at by the Court of Criminal Appeal as the

provisions cited did not have the effect of substantially repealing “the well established jurisprudence” on sentencing in this country.

Having set out his reasons for such view, the learned judge went on to confirm that cases such as the Tiernan, DPP v. G [1994] 1 I.R.

587 and M, in the context under discussion, remain good law in this jurisdiction.

56. However, this is not to say that a court, even with a guilty plea cannot impose a maximum sentence in “rare and exceptional”

cases. It can and always could, with s. 29(2) of the 1999 Act being purely declaratory is this regard. Before doing so however it must

consider all of the mitigating factors and give each one its due and proper weight. Having so stated, Kearns J. continued (para. 35):

“It would, however, be an essential requirement when imposing a maximum sentence against a backdrop of a guilty plea

that the court would identify those exceptional circumstances in such a way that would make it absolutely clear why the

maximum sentence is warranted when there had been mitigating factors in the case. Such instances will of necessity be

rare and confined to those cases where the offences represent the worst imaginable variation of the offence in question.”

57. In each of the cases to which the Court was referred, where, as it happened, a life sentence was imposed even after a plea of

guilty, the same can be justified by reference to their individual circumstances. In Daniels, the accused made a conscious decision,

without motive, to kill the child victim: simply, he wanted “to see what it was like to kill”: the young girl survived only by playing

dead. In Duffy, another attempted murder case, the accused, having left a licensed premises moments earlier where he was well

known, returned with a double-barrel sawn off shotgun and began shooting the victim, with intent to kill him in a crowded bar which

had a C.C.T.V. system operating. He was undisguised and presented, as the Court of Criminal Appeal described, as being

“untouchable”. It was only by the most fortunate of circumstances that his intended victim was not killed. In addition, he had a

significant criminal history and was previously convicted of murder and firearm offences for which he received a life sentence but was

released under the Good Friday Agreement. In Adams, given the depraved and systematic nature of the sexual abuse established, the

Court described the case as “one of the gravest … to come before the courts in recent times and indeed so far back that any of us

can remember”. Consequently, it can be readily seen from this brief description that each case could confidently be categorised as

being at the summit of the offence in question.

58. As appears from the judge’s ruling, summarised at paras. 6 and 7 supra, it seems that whilst he noted some of the mitigating

factors which were advanced in the case, his repeated reference to the twin pillars upon which he was sentencing Mr. Begley, namely

punishment and deterrence, gives a strong impression that he disregarded or otherwise overlooked such factors when determining the

actual sentence ultimately imposed. Such, would of course amount to a clear error of principle.

59. In his sentencing ruling in Perry the same judge used the same type of language as he did in the instant case saying:

“… he seems to be an eminently decent man, a hard working man, he seems to have made his way in life and he seems to

be an addition to the community. I accept that he has pleaded guilty ... that what I am going to do is of a punitive

nature. There is no need to rehabilitate Mr. Perry because he is rehabilitated, and he is in my view not at risk of

reoffending”.

60. On appeal the Court of Criminal Appeal in the judgment of Hardiman J. who, having noted that Mr. Perry was a man of previous

good character with no prior convictions stated:

“In other words, he [the trial judge] excluded from his consideration any ground for a custodial sentence other than the

purely punitive [one]. This, in the view of the Court, is not in accordance with the accepted jurisprudence, and one

[cannot] entirely exclude the personal history of the accused; it is certainly not in accordance with the established

jurisprudence for the treatment of first offenders of good character.”

Hardiman J. continued:

“In all the circumstances we are of the view that the learned trial judge erred in principle by wholly excluding the personal

factors from what he seemed to think necessary, …about the demonstration factor in sentencing. The demonstration

factor is not an illegitimate consideration, …but it is not one which permits the total displacement of the personal

factors.”

This Court agrees with these observations as evidently no one factor can trump all others, certainly without evaluation or

explanation.

61. Lest however that to allow the appeal on this basis the Court should have misinterpreted the judge’s position, it proposes to

proceed as if in fact he had considered such matters, although this is highly problematic (paras. 6 and 7 supra). Even so, it must

immediately be seen that consideration, without effect and without explanation, is of no value. Even, therefore, if such had occurred

it must be, on the facts of the case, that he misdirected himself as a matter of law. This must inevitably follow, as if he had correctly

given credit for what was urged, he could not have arrived at the sentence which he did.

62. There is no doubt but that these are very serious offences which lasted over a period of time and which were carried out with

premeditation and executed with and after careful planning. Personal gain for himself and his family were the core motives involved

with both competitors and the public alike suffering as a result. Therefore it is quite correct and highly proper to regard such offences

in such light. In addition, there is nothing defective in basing a sentence on punishment and general deterrence. In fact, the latter is

particularly appropriate to crimes of this nature. However, to so base the decision purely on these grounds, to the exclusion, if not

intentionally, then certainly effectively, of the mitigating factors must be equated with an error of principle and this Court so holds.

63. In imposing the maximum sentence on count no. 6, the judge failed to give any explanation as to why he considered the

circumstances of the case as falling within the highest range of conduct possible for this type of offence. Again he offers no reasons

for concluding that the case gave rise to “rare and exceptional circumstances”, which would justify that sentence. Such is an

essential requirement, according to Kearns J. in R. McC., when a trial court proposes to take such a step. Secondly, in effect he was

making a representation that the gravity of the offence could not be surpassed by other circumstances and by other individuals giving

rise to the same offence. That simply could not be correct. Evidently, for example, the frauds could have been perpetrated over a

longer period and could have involved misappropriation at a much higher level. Even leaving such considerations entirely aside

however, and simply concentrating on the mitigating factors, it is easily conceivable that another individual guilty of the same offence

could not draw on or call in aid the multiple factors which exist in favour of Mr. Begley. What sentence would be imposed if these

matters were not present? Evidently, it could not have been greater and if it was, similarly, surely, “equality”, a principle of

sentencing, would have been breached.

The Admission and Cooperation:

64. To further illustrate the failure to give weight to particular factors, the Court will mention a few such specific matters. As appears

from a summary of the prosecution’s case as outlined above at para. 5 supra, once engaged by the Revenue Commissioners, the

appellant immediately admitted the scheme and his sole responsibility, on this side, for its operation. His search for and disclosure of

computer records was far more extensive than the Revenue Commissioners were seeking. He voluntarily made available material which

otherwise might never have come to light. He identified the first occasion upon which the scheme was implemented, and gave

detailed information of all events which occurred thereafter, up to the detection date. The level of admissions and cooperation, at the

time and thereafter and their value, can best be judged by referring to a description given by Counsel on behalf of the Director of

Public Prosecutions as part of his submission to the Court during the discovery process in 2011: at p. 9 of the transcript he said:

“”This is a case where the main proof in the case is that of the copious, detailed and very helpful admissions made by the

accused, whereby he supplied chapter and verse, explained to the customs officers the nature of the fraud that had been

engaged in over a period of time, and went so far as, I thing, even to provide emails and other communications with the

supplier along the lines of suggesting, ‘I want to order X amount of garlic but make sure there’s only two tonnes on the

paper.’”

Whilst it may be overstating it to say that such cooperation was unprecedented, nonetheless, one can confidently describe it as

being at the higher end of such process. In effect, the book of evidence was entirely supplied by the appellant.

The Plea of Guilty:

65. Of striking significance is the fact that such plea was never even mentioned by the judge in his ruling. That is an omission of some

significance, even more so when one considers the circumstances. Notwithstanding that however, the Director of Public Prosecutions

contests that the plea of guilty as entered can correctly be “characterised” as an “early plea” in that the appellant only pleaded to

the four counts on the indictment some four days prior to the commencement of his trial on the 17th January, 2012. Whilst she

accepts that Mr. Begley initially intimated a desire to plead guilty when it was thought the offences would be disposed of summarily

there was, she claims, a marked change of attitude when a trial on indictment was directed. This, it is suggested, is borne out by the

application for discovery.

66. The Court is not at all sure that these facts can be interpreted in the manner suggested by the Director of Public Prosecutions. It

is clear from the outset that as a result of the level of cooperation given, the extent of the documentation produced and the

admissions made, that a plea was always likely. On a careful reading of that discovery application, its purpose is also consistent with

Mr. Begley seeking clarification of precisely what documentation other than that supplied by him, might form the basis of further

charges against him. When it became clear, following that application, that the content of the book was based on his documentation,

the controversy seems to have subsided. In such circumstances, it was not unreasonable to further consider his overall position once

the Director of Public Prosecutions’ direction became clear, particularly noting that the prosecution had, in the first place, commenced

with the issue of summonses.

67. As events transpired, there was a plea entered, not simply a few days before trial but on the 21st December 2011. However so

characterised, it had the resulting advantage of a potentially long and protracted trial being avoided and thus time and expenditure

being saved. Even however allowing for some uncertainty arising out of the matters above mentioned, it must nonetheless be that, in

the circumstances, when read in conjunction with the admissions and cooperation, the plea has to merit serious consideration.

Restitution:

68. It has always been considered that restitution, and ancillary punishments such as the payment of interests and penalties on

arrears of tax (The People (Director of Public Prosecutions) v. Redmond [2001] 3 I.R. 390) when effected, is a material factor for

mitigation. In this case, and as previously outlined, Mr. Begley has agreed to repay to the Revenue the sum of €1.6 million by way of

an agreed schedule, the first payment having commenced in December, 2009, with the final instalment due in November 2013. All

payments have been made promptly, and the Court is quite satisfied that the entire sum will be discharged in the time frame agreed.

It is not quite clear as to what portion if any of this sum involves interest or penalties. Whilst it would have been helpful to have

details in this regard, nonetheless, it must be presumed, that in agreeing the ultimate figure, the Revenue Commissioners had regard

to both matters as would be quite common in any successful negotiations between a defaulting tax payer and the Revenue.

Consequently, as a result of the discharge of this sum, the State will not suffer any financial loss as a result of the offences

committed. Whilst unlike say Hughes, where the payment in that case was said to have left the convicted person destitute, the

payment by Mr. Begley will not have that effect, nonetheless, the sum is significant and in any event the point of greater value is the

position of the State.

69. It is accepted that genuine remorse has been demonstrated by Mr. Begley.

70. An impressive list of testimonials was handed in, including one from a direct competitor.

71. The appellant has no previous convictions, is, according to the trial judge totally rehabilitated and is a person unlikely ever to re-

offend. Whilst it is not uncommon to find that those convicted of tax fraud will be in a similar position and therefore credit in this

regard may not be as high as in other cases, nevertheless it goes without saying that such matters simply cannot be stood down or

ignored.

72. In view of these factors, it was not open to the trial judge, as a matter of law, to impose the sentence which he did. As stated,

either such were entirely overlooked, or if regard was had to any one or more of them, such was not appropriately or properly valued.

In these circumstances, this Court is satisfied that an error of principle exists, and thus the sentence must be set aside. It follows

from the above that likewise, the sentence cannot be said to be proportionate, in the sense in which that term is used in this

context, namely appropriate to both crime and criminal. For that reason also it cannot stand.

73. The Court in accordance with the procedure laid down in The People (D.P.P.) v. Cunningham [2002] 2 I.R. 712 will now move to

the second phase of this process which involves hearing submissions from both parties, after which the Court will itself specify what

the appropriate sentence should be. Such task will be undertaken by reference to the sentencing principles above outlined.

74. Further submissions were made on the 4th February, 2013: however, the additional matters offered do not add anything of

substance to what was already before the Court, the most important features of which have previously been noted.

75. There cannot be any doubt but that the charges in question are serious and constitute a significant infringement of the criminal

law. This is equally so as regards the manner of their commission, being well and carefully planned, even if in-depth sophistication was

not required. They were carried out at different times over a prolonged period, one occurring in 2003, five in 2004, two in 2006 and

three in 2007. Their execution involved premeditated acts of deception with the motive of the convict being that to advance himself

and his company. Given such, it is impossible to say that these were out of character, in the sense that on each occasion of

criminality the appellant had a full insight into what his intentions were and undoubtedly must have appreciated the wrongdoing of his

conduct. Therefore, the offences are both notable and significant in nature. Moreover, given the circumstances in which they were

perpetrated, there is no doubt but that an element or aspect of general deterrence is appropriate so as to demonstrate the

consequences of this type of behaviour.

76. In this context reference should be made to the evidence of Professor Caoimhin Mac Maoláin from the school of law, Trinity

College, which dealt with “the rates of tariffs and quotas on the importation of garlic into Ireland and other European Union Member

States”. In that report inter alia he outlines the following:

(i) the importation of garlic from third countries, such as China, has been the subject of a series of EU Regulations going

back many years. These have established a system for setting charges on such importation, have set out the conditions

for obtaining a garlic imports licence and have dealt with import quotas, at which the lower rate of duty is paid;

(ii) under Regulation No. 2658/1987 the rate on garlic was set at 12%, with no additional tonnage charge for exceeding a

quota. This was the same rate as applied to other similar foods such as shallots and onions;

(iii) in 2001 both the basis for the charge and the rate itself, on garlic imported into EU Member States from China, was

changed, as it has been on a number of occasions since then;

(iv) at present the applicable Commission Regulation is (EU) No. 1006/2011 of the 27 September, 2011 amending Annex I

to Council Regulation (EEC) no 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, O.J.

L 282 28.10.2011 by which the duty charged on the importation of garlic into Ireland from third countries is set. Currently,

the rate is 9.6% on the first 58,870 tonnes imported across the EU. Out of this figure the Regulation provides that up to

33,700 tonnes may be imported from China at this preferential duty rate;

(v) the charge then increases to 9.6% plus €120 per 100 kilo net, on any importation from China, which exceeds the

tonnage last mentioned;

(vi) as applied to the Begley imports, the actual rate varied with most if not all consignments: the value of such goods

stood at 232% in July 2003; 217% in August 2004; 170% in October 2007 and 138% in November 2006. Therefore, whilst

the range is considerable, the effective rate, according to the evidence, “is often … around the 200% mark”;

(vii) this compares with the charge currently imposed on what are described as “comparable products”, such as shallots

and onions, which is 9.6% with no additional charge for quantity: this can result in a saving of up to twenty four times

that paid for garlic;

(viii) in the opinion of the witness the tariff quota system and the resultant rates for garlic imports are “highly punitive”

and are “without question”, in his experience, quite unlike any other charge which he has come across in the field of

international trade in food; and finally

(ix) he finds it difficult to outline an understandable basis for either the approach or the charge.

77. There is no doubt but that this evidence, as one might readily expect arouses great curiosity and makes for a fascinating exposé

of this particular import regime. Indeed 75% of what is collected by the Revenue is remitted to the budget of the European Union with

the host country retaining the balance to cover administration costs. However, despite what interest one might have in or even

concern about such levels of duty and at the rationale underpinning the great disparity between garlic and other comparable foods,

the fact of the matter is that such curiosity must remain at a personal level and not at a legal one, as this Court, when imposing a

criminal sanction, has no role in commenting upon, accounting for or reflecting on the fairness, unfairness or otherwise of such a tax

system. This remains a matter for Government in the context of the appropriate EU structure as presently constituted.

78. The essential reason for the Court’s earlier ruling was that the sentence imposed was excessive, by reason of a failure by the trial

judge to either properly consider or to appropriately weigh the individual mitigating factors which undoubtedly exist, and in respect of

which Mr. Begley was entitled to credit. Before again addressing these matters however, reference should be made to other Revenue

cases, although what real benefit will emerge from this exercise remains questionable as, save for very few in number, the information

available on such cases is quite sparse and in many respects lacks critical detail regarding matters such as pleas, restitution, previous

convictions, personal circumstances, etc.. However, some brief comment may be appropriate.

79. On the Revenue website, in its archives, there is a list of cases from 2005 to 2012 involving the prosecution of many individuals

and companies for Revenue offences, as broadly understood. As one might expect, at least in some instances, there is considerable

diversity in the sentences ultimately imposed.

80. From the year 2012 the following can be noted:

(i) A Ms. Collopy, on a plea to three offences of selling tobacco products without having paid the required duty, was

sentenced to two years on each charge all to run concurrently. The potential loss to the Revenue was €9,430. She had

two previous convictions in 2005 for similar offences. No further details of the case are available.

(ii) A Mr. Floyd was convicted, after trial, of twenty-seven counts of knowingly or wilfully claiming VAT repayments to

which he was not entitled and of delivering incorrect VAT returns, all being perpetrated through a bogus VAT scheme.

One source puts the repayments claimed at just short of €700,000, whereas according to contemporaneous newspaper

reports there was almost €7 million of loss to the State through VAT payments of €1.6 million and €5.25 million in relevant

“contract tax”. He received a consecutive sentence of three years on two counts with the final year suspended. As is

immediately evident the information available is either somewhat contradictory or not properly contextualised. Further,

neither his antecedents nor personal circumstances are known: it is however clear that there was no plea and it is likely

that no restitution was offered.

(iii) In the joint cases of Dunne and Wynne, the former pleaded guilty to six counts of submitting incorrect VAT returns

and an incorrect P 35 return, of furnishing incorrect information and of failing to comply with the provisions of the Acts

requiring the keeping of books, records and other documents for the purposes of tax. The total amount involved was

about €330,000. He was sentenced to three years in prison with one suspended. No other details are available to this

Court on the case but a bit more information is, on the position of his co-accused;

(iv) Mr. Wynne, the co-accused, and a director of Loganroy Consultants Ltd. (in liquidation), pleaded guilty to ten sample

charges out of a total of thirty, of knowingly delivering incorrect VAT returns over a four year period and of knowingly

producing incorrect VAT invoices. Again, according to contemporaneous newspaper reports, a total of 324 invoices were

transferred to a fake company, amounting to over €4 million in income. It is reported that Mr. Wynne owed €1.67 million to

the Revenue, including back taxes and interests. He had collected and offered €30,000 by the date of trial. On a plea, he

was sentenced to three years with one suspended on several of the charges, all to run concurrently.

Much the same bare information is given for the other cases mentioned on the website.

81. As can be seen, the level of detail is simply not there to discern any pattern to the sentences imposed. Moreover, many matters

which may, or for that matter may not, have been urged, are unknown. Therefore, in such circumstances it would be quite unsafe to

deduce anything of relevance for the purposes of this appeal.

82. There are however two written decision where much more is said about the facts: one is Murray and the other is Hughes. It will

be recalled that Mr. Murray pleaded guilty to a passport offence and to twenty-five sample counts of social welfare fraud (paras. 37

& 38 supra). The scheme underlying those offences was elaborate, sophisticated, devious and meticulous in both its planning and

execution. It involved the creation of multiple false documents, including many of a public nature and the indiscriminate use of false

names. The fraud had continued for about four years, during which time the appellant travelled every three months from his then

home in Thailand to commit these offences. The loss to the State was about €240,000, described as the biggest fraud of its kind at

the time. On the credit side, he pleaded guilty and cooperated when arrested. He was sentenced to three years for the passport

offence which was not in issue. His overall twelve-and-a-half year sentence was ultimately reduced to one of nine years in the Court

of Criminal Appeal.

83. From a full reading of the case it is clear that there was in place a complex, elaborate and intricate scheme, carried out over

many years, involving gross breaches of trust, by the use of falsely created public documents, including passports, driving licences,

birth certificates, social welfare cards, etc., with the perpetrator displaying a level of culpability and deviousness which rightly so has

been described as being on an “extraordinary scale”. The facts of such case are therefore totally unlike those presenting in the

present appeal. Finally it should be also noted that the vast majority of the charges which Mr. Murray faced carried a ten year

sentence unlike that in this case.

84. The case which is probably most useful to this Court is that of Hughes, again above mentioned. Mr. Hughes pleaded guilty to six

counts of failing to make VAT payments and to submit appropriate returns. He was sentenced to four years in the trial Court on each

of these charges, all to run concurrently. The period of offending was between July 2003 and February 2006 and involved the

fraudulent use of a VAT number, from a company which had not traded since 2002. By such use, motor vehicles were imported from

the United Kingdom into this country. As stated, neither returns nor payments were made. The total VAT avoided was about

€225,000, which by trial date had been repaid with a further €50,000 being available in relation to his overall liability in this regard. It

was unclear however, at that time, precisely what further amounts remained to be discharged as the matter was still pending before

the Appeals Commissioners.

85. In addition to VAT, however, he was also significantly in default in terms of Income Tax and C.G.T. in respect of which he was

levied a sum of almost €800,000 by the Revenue. At the date of trial he had paid about €680,000 of this amount. In order to meet

these commitments he had sold his house in France, downgraded his Irish house and made real efforts to deal with the financial

situation. He was married, a father of two, had no previous convictions and was of good character with strong testimonials given to

the Court. On appeal the C.C.A., “[t]aking account of his very extensive settlements and cooperation with the Revenue, the

destructive effects on his life, his plea of guilty, his rehabilitation and the other mitigating factors”, reduced the ultimate sentence to

one of two years.

86. Evidently, the facts in Hughes are not on all four with the facts in this case. There are however a number of similarities and with

some of the differences also capable of being relevant, by adjustment, the views of the C.C.A. can offer some guidance to this Court.

Such level of application however cannot be overstated as, amongst other matters, Mr. Hughes was grossly non-compliant in his tax

affairs even those unrelated to this scheme, whereas Mr. Begley was not. Secondly, the benefit to the Revenue of the instant

appellant’s cooperation may have been greater. There are of course also some other points of difference. Nonetheless, on the

information available, it affords the most comparable set of circumstances to the instant case.

87. Regarding mitigation, it is not necessary to repeat those factors of relevance as the same are fully outlined at paras. 27 & 28

supra. It is sufficient to recall those which merit the most favourable consideration being the immediate and extensive cooperation

offered to the Revenue Commissioners: the identification and supply of documentation which otherwise may never have surfaced and

which for all practical purposes constituted the book of evidence; the restitution programme entered into and in accordance with its

terms performed several months prior to the institution of criminal proceedings; the admission of guilt, followed by what the Court is

satisfied was a plea at the earliest reasonable time, thereby avoiding a prosecution which could have had some technical issues; the

expressions of remorse tangibly demonstrated; the absence of previous conviction and his personal circumstances. It is also of note

that the value of the goods on the indictment to which he pleaded guilty was about €86,000, whilst the value of the goods in the

entire indictment was about €300,000. In all, the revenue lost in terms of duty was less than the figure last mentioned. These and

the other matters above mentioned must therefore be reflected in the sentence to be imposed.

88. By reason of these circumstances and in order to reflect the gravity of the offences in question and the circumstances of their

commission, but crediting the appellant with due and apposite weight for the very significant mitigating features, this Court is of the

view that, the appropriate sentence should be one of two years.