Irish Court of Appeal
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Cite as: [2014] IECA 39
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Judgment
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THE COURT OF APPEAL Birmingham Mahon J. Edwards J. 199/12 234/13
Respondent V
Derek Floyd Appellant Judgment of the Court (ex tempore) delivered on the 16th day of December 2014, by Birmingham J. 1. In this case the appellant appeals against the severity of two sentences of imprisonment that have been imposed upon him. The first sentence that the court is concerned with was imposed on the 21st May, 2012 and on that occasion in the Circuit Court he was sentenced to a term of six years imprisonment with one suspended. That was on the basis of two sentences, each of three years which were to be consecutive to each other with as I say, the last year to be suspended. That sentence was imposed following a conviction of the appellant on fifteen counts of making incorrect VAT returns and twelve counts of claiming VAT rebates to which he was not entitled. The sentencing process followed a lengthy trial which concluded on the 21st March, 2012, with the jury bringing in verdicts of guilty on the count to which I have referred. 2. The maximum sentence on each of the counts was one of five years imprisonment. The facts of the case can be summarised as follows:
After the first six months of the enterprise, he opened a bank account and put the payments and the receipts through his bank account. The withdrawals from the intermediaries were also reflected in the bank account. As he was obliged to account for VAT on these sales, he arranged to be provided with, or he was provided with, fictitious invoices in respect of fictitious supplies to him so that he could claim input credit to offset the VAT Liability of sales. In a number of instances he went further than merely offsetting the sales liabilities and claimed refunds. The amount of credits claimed resulted in him obtaining refunds which were very significant in some instances.”
5. A number of arguments are advanced on behalf of the appellant as to why the sentence should be regarded as too severe. It is said that he was not the instigator or prime organiser and it is said that a Revenue witness accepted that to some extent he was left as the fall guy in all of this. It is said that misleading figures were relied upon at the sentence hearing and that is with reference to the €15/€16 million going through the accounts. It is this point that is really the core of the appeal on this first sentence and certainly that is the point that is pressed to day in oral submissions. 6. It is the case that here we are dealing with VAT refunds wrongfully claimed amounting to €684,000 and that the VAT element of the transaction was €1.65 million. Counsel on behalf of Mr. Floyd has said that what has happened here is that he is being sentenced for offences other than those that he was convicted of and that the sentencing judge was wrongly led to have regard to these figures by the way in which evidence was adduced by the prosecution. 7. The question of confining the trial judge to the specifics of the convictions or the pleas was a matter that was in issue in DPP v Gilligan [2003] 11 JIC 1202 and there, at p. 91, McCracken J. commented:
9. There is however one matter that causes the Court concern in relation to this sentence of imprisonment imposed in respect of what might be described as the VAT offences. 10. When it came to the operative part of the sentence, the sentencing judge had this to say:
11. The trial judge thus had indicated that he regarded the appropriate sentence as one of five years imprisonment, but having said that proceeded to impose not a sentence of five years imprisonment, but one of six years imprisonment albeit then proceeding to suspend the last year. 12. It is the Court’s view that that does constitute an error in principle. It has to be recognised that the suspended sentence is a real sentence and one has to consider this. Suppose it were the situation that in the future for some reason, the suspended portion were to be reactivated, if that was the case, then the effect of this would be that the individual would find themselves serving a sentence longer than the sentence that had been identified as the appropriate one and in the Court’s view, that cannot be correct. For that reason the court will substitute for the sentence of six years with one suspended, a sentence of five years imprisonment, but also with one suspended. It seems to be the situation that the trial judge took the view that it was desirable that a portion of the sentence should be imposed as a suspended sentence so that it would be in place following the appellant’s release. That was the ambition at the time and it was felt that that would achieve a desirable objective, so for that reason, and following that logic, the court will substitute for the sentence of six years with one year suspended, a sentence of five years with one year suspended. 13. Coming then to the second offence, in this case on the 3rd October, 2013, a sentence of three years imprisonment was imposed and that was consecutive, as it had to be by statute, to the sentence then being served. That sentence of three years imprisonment was imposed in respect of the offence of handing stolen property. It was an offence where the maximum penalty available to the sentencing court was one of ten years imprisonment. 14. The facts may be briefly stated. The gardaí were aware that silage wrap was being sold at what seemed to be below market price in east Clare in mid 2011. The silage was traced back to ITW, a company in Gorey in Wexford. Initially, when contacted, the company was not worried because it believed that it had been dispatched to established clients, Roche Limited in Limerick. 15. However it subsequently turned out that what purported to have been an order from Roche & company that had been placed with the Gorey Company was not really from Roche at all and what had happened was that the person placing the order requested that the consignment be sent to an address in Co. Meath and from there the load was transferred to Tulla in Co. Clare. 16. It emerged that the appellant was involved in selling the diverted stolen silage wrap. He was arrested and interviewed and he said he had bought it from Seamus Lavin. That was the name used when the order was placed. The consignment involved was valued in excess of €45,735 of which only €2,500 was recovered. 17. So far as the appellant’s personal circumstances are concerned, he is a 35 year old man, a married father of children and the Court, in a situation where it was proposing to interfere with the sentence imposed in respect of the VAT offences, has had regard to the additional material that was submitted today and in particular has read the very powerful, and one has to say, moving letter from the appellant’s wife and has taken that into account. 18. The argument in relation to the sentence on the handling matter really comes down to the suggestion that insufficient attention was paid to the requirement to have regard to the totality principle. It is the situation that the judge does not in terms say that he was addressing the totality principle, but it is also the case that the question of totality had been to the forefront of the plea that had been presented to him, so it is impossible to believe but that he was concerned with that and that he was very conscious of the fact that the sentence he was imposing was going to be a consecutive one and that it was required to be consecutive by statute. 19. The operative part of the sentence is dealt with in these terms:
21. If those were the only options available to the judge, then it is clear that he was correct in saying that a custodial sentence was called for. This was a serious offence. It obviously involved significant preplanning and even if there were aspects of it that were not executed with particular efficiency, there was premeditation and preplanning. 22. However, the Court is of the view that those were not the only options and that it was open to the trial judge to consider the question of a partly suspended sentence. Insofar as he was being required to impose a consecutive sentence on somebody who was already serving a substantial sentence, and who was serving that sentence as a first time offender and was in prison for the first time, it appears to the Court that it would have been appropriate that the question of suspending a portion of the sentence to give effect to the totality principle should have been given active consideration and it is not clear from the transcript whether that in fact happened or whether, as the transcript would seem to suggest, consideration was confined to the question of whether there could be a total suspension. 23. All in all, given that the sentence was going to be made consecutive to a significant sentence being served by someone who is in custody for the first time, and having regard to the mitigating factors that had been advanced, the Court’s view is that it would have been appropriate to suspend a portion of that sentence and the Court will therefore do so at this stage because of the failure to impose any element of a suspended sentence. The court will suspend the last eight months of the handling sentence. 24. In summary then, the sentence of six years with one suspended, will be varied to one of five years with one suspended while the handling sentence remains at three years, but the final eight months are to be suspended. |
