Irish Court of Appeal

You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions v Kavanagh [2020] IECA 13 (27 January 2020)
URL: http://www.bailii.org/ie/cases/IECA/2020/2020IECA13.html
Cite as: [2020] IECA 13

[New search] [Printable PDF version] [Help]

Page 1 ⇓

Edwards J.

McGovern J

Kennedy J

THE COURT OF APPEAL

Record No: 0167CJA/2019

IN THE MATTER OF AN APPLICATION PURSUANT TO

SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE (AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS)

-V-

CLIVE KAVANAGH

APPLICANT

RESPONDENT

JUDGMENT of the Court (ex tempore) delivered on the 27th day of January 2020 by Mr

Justice Edwards

Introduction

1. On the 5th of March, 2019, in Naas Circuit Court, the respondent pleaded guilty to one

count of Money Laundering contrary to the section 7(1) (a) (ii), 7 (1) (b) and 7 (3) of the

Criminal Justice (Money Laundering and Terrorist Financing) Act, 2010. Evidence of the

circumstances of the crime and concerning the respondent’s antecedents was heard, and

sentence was handed down, on the 4th of July, 2019. The respondent was sentenced to

three years’ imprisonment with the final eighteen months thereof suspended for a period

of eighteen months following his release on the accused entering into a bond in the sum

of €100 to keep the peace and be of good behaviour during that period.

Background Facts

2. The court heard evidence from Detective Garda Declan O’Reilly of the Drugs and

Organised Crime Bureau in relation to the offence. Based on intelligence gathered, the

gardaí expected that a large sum of cash was to be transferred between two parties at

Tougher’s Garage, Naas on the 1st of September, 2017. A surveillance operation was

accordingly mounted at that location on that date. At around 8.15 pm, gardaí observed a

white Scania lorry parked in the parking area at that premises. At 8.25 pm, a man who is

co-accused, but who was not before the court on the same date as the respondent, was

observed exiting the driver’s side of the lorry and heading for the garage. He returned to

the lorry at 8.50 pm before leaving again for the restaurant, and returning at 9.25 pm. He

was observed walking around the car park, having left the door of the vehicle open, and

speaking on his phone.

3. At 10.15 pm, a grey Volkswagen Passat, driven by the respondent, pulled up and

positioned itself beside the driver’s side of the lorry. The boot of the Passat was then

remotely unlocked. After brief conversation, the co-accused and the respondent went to

Page 2 ⇓

the boot, where a purple holdall bag was removed by the co-accused, and placed in the

driver’s side of the lorry. The two men then engaged in further conversation, and whilst

they were so engaged gardai intervened, arrested both men and searched the lorry. The

purple holdall was located in the driver’s side foot-well of the lorry and was seized.

4. The respondent had been arrested for an offence contrary to s.7 of The Criminal Justice

(Money Laundering and Terrorist Financing) Act 2010. He was then conveyed to Naas

Garda Station and was detained there pursuant to s.4 Criminal Justice Act, 1984 for the

proper investigation of the offence for which he had been arrested.

5. Upon examination by gardaí, the purple holdall bag was found to contain €829,265, in 17

plastic-wrapped bundles. A subsequent search of the respondent’s vehicle yielded a

Blackberry phone, an iPhone, and an Alcatel phone, as well as envelopes containing

money bags, and rubber gloves and the car’s keys. Following the respondent’s release

from s.4 detention a file was sent to the DPP who directed that he be charged with the

offence to which he ultimately pleaded guilty.

Respondent’s Personal Circumstances

6. The respondent is now a 37 year old man who is a native of Dublin. At the time he was

residing in Lucan with his wife and two children. He had been self-employed in the

construction industry since leaving school and was the sole provider for his family. He still

benefits from the support of his family. A large number of testimonials were handed in to

the court from various persons, including family members, friends, work colleagues and

business associates attesting to the good character of the respondent, expressing shock

at learning of his involvement in this crime and suggesting that his involvement was out

of character.

7. The respondent has nine previous convictions, all relating to minor road traffic regulatory

offences, such as failure to have an NCT, with the exception of one previous conviction

before the Circuit Court on indictment in 2004, when he was 21, for possession of

controlled drugs for sale or supply contrary to s.15 of the Misuse of Drugs Act 1977. This

matter had been dealt with non-custodially, with the respondent receiving a two-year

suspended sentence and an €800 fine.

8. It was accepted by Garda O’Reilly in cross-examination that the respondent entered an

early plea which had been of some assistance and that he had complied with his bail

conditions. Garda O’Reilly further confirmed that the respondent was not the owner of the

money seized. While the crime to which the monies related was not identified, and under

the relevant legislation it does need to be, Garda O’Reilly further remarked “we don’t

believe he stole all the cash”, implying at least that the crime at issue involved some form

of theft.

Sentencing Judge’s Remarks

9. In sentencing the respondent, the sentencing judge stated the following:

“…it appears that the accused was involved in the transfer of monies at the garage

to someone else in the chain, so to speak, and the gardaí intervened and arrested

Page 3 ⇓

him. It is a very large sum of money - in cash, I note - and clearly the proceeds of

criminal conduct and organised crime. It is a fair point which has been raised by

the defence that I cannot make any presumption that it is drugs money with the

particular difficulty that that would cause the defendant in terms of sentence. But,

equally, organised crime remains a problem for the State and for communities

within the State, and I have to deal with it therefore in a serious manner.

The involvement of this particular accused is that he appears to be some form of

conduit for the monies in that the monies were not his own, but he's part of a link,

or chain, which these monies which were the proceeds of criminal conduct were

being moved around. And unfortunately for him, he has to take the responsibility

for that. The amount involved would suggest that I have to take it seriously, and in

terms of the first problem, namely where is it on the scale of harm and moral

turpitude, it seems to me that the correct sentence for this amount of cash in the

circumstances, having regard to the background of the accused and the facts that

I've heard, would be six years' imprisonment. That is my view of where the case

lies in terms of its seriousness and on the scale it's somewhere, it seems to me,

towards the higher end of the mid-range, certainly in the mid-range. I note in the

Cunningham case there was over 4 million involved and clearly with serious crime

there are large sums of money involved. But, I note that when the Cunningham

matter was dealt with, and also the Trimble case, they were cases where the sum

was in or around a quarter of a million euro. It's not really an enormous difference,

but it's a significant difference between that and €829,000. The circumstances,

therefore, are, if one starts with a tariff of six years, what mitigating features can

be applied to the case to reduce that. It's sometimes not clear from the reporting

of cases that the headline sentence is what the Court deems the crime justifies in

terms of the sentence, and the application of mitigating features is something that

the law requires of a trial judge, and there are plenty of authorities to suggest so,

and they apply then in reduction of the sentence. And what tends to happen is it

gets reported that the judge gave the reduced sentence, but that's not necessarily

the judge's view of the seriousness of the crime.

So, what are the mitigating features of this case? Well, first of all, he entered a

guilty plea and an early plea, and the authorities suggest that that must be taken

into account. Secondly, I do accept the submission which has been made on his

behalf that the plea of guilty in a case of this nature with the number of witnesses

involved is of considerable assistance to the State, and that ought to be taken into

account in assessing punishment. He's a gentleman who has been compliant with

his bail and I accept that, and I also accept he wasn't the owner of the proceeds of

the crime involved.

I have no doubt, and it's not particularly pleasant for me, I have no doubt that

sentencing this man to a term of imprisonment which I'm afraid I have to do is

going to have a devastating effect on his family. And he obviously comes with very

good references which I will pay more attention to now in a minute, but he's a self-

Page 4 ⇓

employed builder, he's the sole provider for his family, and he is obviously a good

family man, I note what it said in his support in that regard, and I accept that he is,

and I accept therefore that this is not going to be easy for his family, and it's going

to have financial consequences for them. I am entitled, and I do take that into

account when constructing a sentence, because I think this is fair that where there

is an impact on innocent people, from a custodial sentence, that a court should take

that into account.

I also accept that he has been remorseful and to some extent it's out of character,

certainly from his friends and those he works with, this is something that they're

surprised by, and they don't believe is normal behaviour for him, but he does come

with, albeit, quite historical, albeit back in 2004 when he was a much younger man,

a previous Circuit Court matter which is a section 15 which I have to take into

account. He has a number of previous RTAs which I don't think are significantly

relevant to the sentencing here. But, the position in relation to the references

which were handed up to me, I have read through them and they obviously speak

very well of him, and as I've indicated and tried to summarise, I accept that this is

going to have a deep impact on his business, on his family life, on the life of his

children, and his wife. And there's no pleasure from my perspective in doing that,

but I have to mark the seriousness of the offence with an appropriate sentence.

What I'm going to do is I'm going to reduce, having regard to the mitigating

features, the sentence to one of three years. I'm also having regard to the matters

that I have outlined, and I believe this is a case where a suspension of a portion of

the sentence would, a) assist his family, but also b), assist him in rehabilitating,

because he's clearly a working man who has allowed himself to get involved

through a mistake in a significant and serious criminal activity and who pays the

price for that now, but I am prepared to suspend the last 18 months of the

sentence for a period of 18 months on his bond to keep the peace and be of good

behaviour. It's not a case, I think, where I need to involve the Probation Services,

so I'm not going to do that. But, he's on the bond to keep the peace and be of

good behaviour, so, he's to keep out of trouble for those 18 months.

So, essentially, what it comes down to is that he will serve 18 months and if he

keeps himself out of trouble, he won't serve any further time, and that's the best I

can do.”

Grounds of Application

10. The appellant seeks a review of the sentence on the grounds of undue leniency. The

Notice of Application in that regard complains:

I. The sentencing judge erred in principle in the manner in which he structured the

sentence imposed by applying undue weight to the mitigating factors present which

resulted in him failing to adequately reflect the seriousness of the offending

behaviour before him.

Page 5 ⇓

II. Further, or in the alternative, the sentencing judge erred in principle in

circumstances where the sentence imposed failed to adequately reflect the

principles of specific and/or general deterrence.

III. Further, or in the alternative, the said sentence did not adequately reflect the

nature of the charges and the consequences of the acts of the respondent

11. Notwithstanding these formal grounds it was conceded both in written submissions and in

argument before us at the oral hearing that no complaint can be pressed with respect to a

six-year headline sentence nominated by the trial judge, or with the three years

discounted in the first instance to reflect mitigation. The real complaint on the Director’s

part was with respect to the suspension of 50% of the remaining three-year post

mitigation sentence. The Director contends that this was unjustified, that it represented a

double counting of mitigating factors, and that it was outside the norm, thereby rendering

the sentence unduly lenient.

12. We were referred by way of comparators to The People (DPP) v. Ted Cunningham

[2013] IECCA 62; The People (DPP) v. Trimble [2016] IECA 309; The People (DPP) v Warren,

unreported Court of Criminal Appeal (Murphy, Carroll and Kelly JJ.), July 5, 1999; The

People (DPP) v. Carew [2019] IECA 77; , The People (DPP) v McHugh [2002] 1 I.R. 352;

The People (DPP) v Meehan [2002] 3 I.R. 139; The People (DPP) v John Duffy; The Irish

Times, October 2, 2015 and The People (DPP) v Michael Cole, The Irish Times November

5, 2019, although it has to be said that none of these were of any assistance concerning

when the discretion to part suspend a sentence in a money laundering case might be

appropriately exercised, or whether any different considerations exist in that regard in

such cases as opposed any other kind of case.

Discussion and Decision

13. The jurisprudence in relation to undue leniency appeals is by now so well established that

it is unnecessary to refer to it in any detail. It is sufficient to say that the onus of

establishing undue leniency rests on the applicant who must establish that the sentence

complained of represents a departure from the norm to a significant extent. Usually such

a deviation will be the result of a clear error of principle. Moreover, a reviewing court is

required to attach great weight to the stated reasons of the sentencing judge at first

instance.

14. In this particular case the sentencing judge decided to suspend eighteen months of his

post mitigation sentence of three years on the basis that:

“I believe this is a case where a suspension of a portion of the sentence would, a)

assist his family, but also b), assist him in rehabilitating, because he's clearly a

working man who has allowed himself to get involved through a mistake in a

significant and serious criminal activity and who pays the price for that now, but I

am prepared to suspend the last 18 months of the sentence for a period of 18

months on his bond to keep the peace and be of good behaviour.”

Page 6 ⇓

15. Although the sentencing judge spoke in terms of rehabilitation, this was not in truth a

case in which rehabilitation, in the positivist sense, was required. The respondent had no

underlying condition, or addiction or problem which required to be treated or addressed

and which if treated or addressed would enable him to avoid committing crime in the

future. Rather, the sentencing judge’s objective was to facilitate the reformation of the

respondent in the interests of society, by imposing an appropriate prison sentence (3

years) to mark society’s deprecation of what he had done, while at the same time

suspending a significant proportion of that sentence (50%) so that only eighteen months

of the indicative three year term needed to be actually served, so as to promote

desistence and incentivise the respondent to stay out of trouble in the future in

circumstances where there were grounds to be hopeful that if given a further chance to

turn away from crime that he would do so.

16. In addition to offering a positive incentive, such a sentence also has the effect of holding

a Sword of Damocles over the offender for the duration of the period of suspension. It

therefore seeks to achieve future behaviour modification primarily through incentive, but

also to some extent through deterrence, while at the same time still requiring the

offender to spend some time in custody both as censure and as punishment by way of

hard treatment in the hope of inducing in him as a presumed moral actor recognition of

the unacceptability of his conduct and that his punishment is deserved.

17. There is well established jurisprudence that recourse can be had to imposing a partially

suspended sentence for that purpose and in that regard, I would refer by way of

illustration to two such instances specifically referenced by Professor Thomas O’Malley in

his seminal work, Sentencing Law and Practice, 3rd Edition. The first arises in

circumstances where the accused either has no previous convictions or very little in the

way of previous convictions. Professor O’Malley says, at para 6-42, that:

“Courts are often willing to treat a person with a small number of convictions for

minor offences committed some considerable time in the past as being, in effect, a

first-time offender. Certainly a record of that nature is most unlikely to be treated

as an aggravating factor. A reasonably long interval since the latest of the previous

convictions may reflect a genuine effort by the offender to reform and lead a law-

abiding life. This will not necessarily be deemed the equivalent of a clear record

but it is a factor which the court may take into account.”

18. Professor O’Malley then continues at para. 6.43:

“The rationale for treating the absence of previous convictions as a mitigating factor

has been variously expressed but the so-called lapse theory attracts a good deal of

support”. It has been described by Von Hirsch in the following terms:-

‘Our everyday moral judgments include the notion of a lapse, a transgression

even if a fairly serious one should be judged less stridently when it occurs

against the background of prior compliance. The idea that even an ordinary

well-behaved person can have his or her inhibitions fail in a moment of

Page 7 ⇓

weakness, wilfulness or regression. Such a temporary breakdown of self-

control is the kind of human frailty for which a degree of understanding

should be shown.’”

19. Professor O’Malley continues:-

“For those who have lived a good part of their lives without coming into conflict

with the law a conviction alone and the stigma attaching to it will often be

punishment enough and more than adequate deterrent. Appeal Courts have

therefore been willing to accept that a first offence, unless it is a particularly serious

one, need not attract anything more than a short prison sentence assuming the

custody threshold is crossed. The possibility of a community-based sanction should

always be seriously considered unless the offence by virtue of its nature or gravity

clearly calls for imprisonment.”

20. The second instance instanced by Professor O’Malley in which this type of approach had

been adopted is in the case of what is referred to as the ‘one last chance’ or “Jennings

Principle” and Professor O’Malley deals with that at para. 8-118 of his work. He says:-

“Desistence research may not often be cited by or to the courts but its main

conclusions have long been intuitively understood and occasionally applied. A court

faced with sentencing a recidivist offender may have reason to believe that the

offender has reached a point where for one reason or another he seems intent on

desisting from further crime. Obviously any measure that will encourage the

offender along the path of desistence should be considered seriously even if it

means imposing a more lenient sentence than the offence would otherwise deserve.

In The People v. Jennings, which has given its name to the principle under

discussion, the Court of Criminal Appeal said:-

‘But there comes a time in everyone’s life, and it is a principle of sentencing

as well, where the court detects that it may be make or break time. If he is

given this, his last chance, perhaps he will hopefully take it and rehabilitate

himself, get employment and become a useful member of the community.’ ”

21. Now, we do not suggest that either of the illustrations cited represents a perfect analogue

for the circumstances of the present case, or that the considerations arising in those

cases apply four square in this case. But they do demonstrate the existence of

considerable judicial discretion in the choice of the appropriate sentencing objective to

prioritise in the circumstances of a particular case, and as to how it might be achieved.

22. The sentencing judge in this case was influenced by the fact that this was a man in his

mid-thirties, with a stable family which he had been supporting, with a good employment

record and about which numerous people had spoken in positive terms. Admittedly some

of those people were his family and friends, but not all of them were. They all spoke in

terms of this offence being out of character for the respondent. While it is true that the

respondent has one previous conviction of significance, it dated back thirteen years before

Page 8 ⇓

this offence and had been dealt with non-custodially. The appellant had acquired no new

convictions in the meantime and had stayed out of trouble until he had become involved

in the present, undoubtedly serious, case.

23. The question for the trial judge was whether society would be better served by a sentence

tailored towards the reformation of this individual, involving an appropriate sentence of

imprisonment but with a part of that sentence suspended as an incentive towards reform;

or by a sentence involving no suspended element directed towards prioritising one or

more of the alternative recognised objectives of sentencing, e.g., retribution and/or

possibly deterrence. It was a matter within the trial judge’s discretion as to which of these

legitimate objectives of sentencing he saw fit to prioritise in the circumstances of the

case. There was certainly an evidential basis for seeking to promote reform.

24. It does require to be emphasised in relation to the former option, and more than mere lip

service requires to be paid to it, that a sentence of imprisonment suspended in whole or

in part is still a sentence of imprisonment, albeit that the term to be actually spent in

custody is less than it would otherwise be (assuming the beneficiary keeps to the

conditions of the suspension).

25. The question for us has been: was the extent to which the sentencing judge sought to

incentivise reform excessive in all the circumstances of the case? His ultimate sentence

was undoubtedly lenient, and indeed very lenient. We have found this to be a finely

balanced case. In the final analysis however, although we regard the sentence at issue as

being very lenient we are unable to conclude that it is so lenient as to be significantly

outside the norm. We are satisfied that the sentencing judge acted within his legitimate

discretion in seeking to prioritise the reformation of the respondent and have concluded

that the partial suspension albeit very generous was not excessive.

26. For the avoidance of doubt. we do not accept that there was double counting of mitigating

factors in this case. The discount from six years to three years was for true mitigation.

However, a judge is entitled to promote desistence and offer an incentive towards

rehabilitation or reformation over and above the discount that must be afforded for true

mitigation, if the circumstances of the case merit it and there is an evidential basis to

justify it. The respondent was not being rewarded twice for mitigating circumstances

already taken into account, rather he was being incentivised to reform. The judge was, as

it is sometimes referred to, “going the extra mile” to promote desistence in circumstances

where the available evidence did not render it disproportionate to do so, but rather

permitted of it. It is a jurisdiction that requires to be exercised with care having regard to

the need to achieve proportionality both with respect to the gravity of the offending

conduct and with respect to the personal circumstances of the offender, and it is perhaps

to be availed of somewhat sparingly on that account. Nevertheless, it is clear to us that

the sentencing judge in this case exercised the required care and that it was an

appropriate case in which to seek to do so.

27. We therefore dismiss the application.

Result: Dismiss application