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You are here: BAILII >> Databases >> Irish Court of Appeal >> The Director of Public Prosecutions v Budash (Approved) [2025] IECA 113 (04 February 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA113.html
Cite as: [2025] IECA 113

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THE COURT OF APPEAL

Neutral Citation: [2025] IECA 113

Record No: 250/2024

Bill No.: DUDP0918/2024

McCarthy J.

Burns J.

MacGrath J.

 

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE Criminal justice ACT 1993

Between/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPLICANT

-AND-

LIUDMYLA BUDASH

RESPONDENT

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

Introduction

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

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

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

 

Circumstances of the Offending

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

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

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

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

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

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

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

Plea in Mitigation

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

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

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

...

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

11.         The sentencing court was informed that the respondent's children were residing with other family members who are still in France, and that that situation can continue into the future. However, it was submitted that this situation is unstable: that it is not ideal for the children to be separated from their mother, particularly the respondent's young twin daughters. In light of this, the sentencing judge was asked to reflect on whether it is "...a constructive way forward to decide that the other option is for [the respondent] to be incarcerated for any further length of time".

 

Sentencing Judge's Remarks

12.         The sentencing judge gave the respondent credit for having dealt with matters "at the earliest possible opportunity", and additional credit for coming forward on a signed plea of guilty.  Regarding the culpability of the respondent, the sentencing judge remarked that the paraphernalia which was found in the hotel room seemed to indicate that she was not simply moving money from one place to another. The sentencing judge observed that at some point, vacuum packing had taken place, either in the presence of the respondent or with her knowledge. The sentencing judge also noted:-

"The guard wasn't in a position to go as far as perhaps Mr McGinn might've liked in terms of suggesting that she wasn't the author of her own misfortune.  I think what the guard has accepted is that she's not on her own in this offending behaviour and that there would be a few people who would have to be involved to put an operation of the kind with which the accused was engaged.  In order to put it in place, people would have to meet other people and there would be layers upon layers perhaps within it.

...

She certainly fell in with a very bad crowd because it seems this is a relatively sophisticated operation, involving the movement of what is close on half a million Euros.  It's accepted that she knew it was illegal and that she made her attitude towards the offence apparent at the outset, that she was completely co-operative...".

13.         The sentencing judge noted that counsel for the respondent had very fairly indicated that due to the amount of money involved, and the necessary inference that this was a serious criminal operation, the criminality was such that the starting point had to be a custodial sentence. The sentencing judge observed:

 "He [(i.e. counsel for the respondent)] asked me to take into account that she is somebody who had very difficult personal circumstances and that a series of misfortunes led her to this situation. That is true. She is somebody who has a difficult time, and that the last number of years have been very difficult for her.

14.         Nevertheless, the sentencing judge also acknowledged that the respondent was a well-educated woman, and...

 "...is somebody who knew what she was getting into when she committed this offending behaviour and, as I say, where the paraphernalia that was found back in the City Hotel indicated that it wasn't a momentary touching of the bag that she had, and she was the subject of the information that the gardaí were dealing with on the date in question.  She wasn't collateral damage who became involved, at a moment was asked to hold something and was unfortunate enough to have been caught.  The Court has to take all of those circumstances into consideration; the fact that this is a serious offence and this is a serious amount of money to be found within the offending behaviour".

15.         The sentencing judge took account of the respondent's personal circumstances, and "the fact that her behaviour leads her children into a difficult situation whereby they are now not entitled to the care of their mother". A headline sentence of three and a half years was nominated, and a post-mitigation sentence of two years imposed. In light of the additional credit due for the plea of guilty, lack of previous convictions and the fact that serving a carceral sentence in this jurisdiction would be difficult for the respondent, the final nine months of the sentence was suspended. The matter was backdated to when the respondent first went into custody on the 12th April 2024.

 

Grounds of Application

16.         Two grounds are set forth:-

1.      That the sentencing judge erred in law, fact and principle in identifying a headline sentence of three and a half years and failed to have regard to the serious nature of the offending (including the level of monies involved, the role played by the respondent and the resulting benefit to a criminal organisation), and the need for a deterrent element in sentencing.

2.      That the sentencing judge erred in fact, law and principle by imposing a post-mitigation sentence of two years and/or suspending the final nine months of the sentence. It is submitted that excessive weight was given to the mitigating factors and that the sentencing judge erred in affording excessive weight to the early plea of guilty in circumstances where the respondent was caught red-handed.

 

Submissions of the Applicant

17.         The applicant, in written submission, contends that despite the respondent's lack of previous convictions and early plea of guilty, as the offending was serious, a headline sentence of three and a half years failed to properly reflect its serious nature. It is also submitted that it is not entirely clear how the sentencing judge arrived at such a sentence, or how the level of credit afforded to mitigating factors was assessed. Reliance is placed on dicta of Whelan J in DPP v. Carew [2019] IECA 77 which described the inherently serious nature of money laundering offences:-

"This court is mindful that the goal of organised crime is to generate significant profit for those who carry out such acts. Money laundering is the processing of such criminal proceeds and funds to disguise their illegal origin. The laundering of the proceeds of crime is of critical strategic importance because it enables criminals to enjoy these profits without jeopardising their source. A significant proportion of the financial proceeds that are laundered are availed of to advance further criminal projects and enterprises. By facilitating the commission of further criminal offences, money laundering is an essential component of a criminal organisation's capacity to perpetuate the carrying out of serious criminal activities." (paras. 31-32)

18.         With reference to a number comparator cases, including the guideline judgment of this Court in DPP v. Samantha Sinott, Ciaran Long and Bernard Joyce [2021] IECA 42, the applicant identifies the key factors to be considered when nominating a headline sentence.  The first factor is the amount of money involved, which, in this case, is substantial. The second factor is the role played by the accused, and in this respect, it is submitted that the respondent fully accepted that she knew her actions were illegal. It is also contended that she travelled to this jurisdiction for the sole purpose of carrying out the offence. It is submitted that the respondent was "not simply transporting the money", as she had vacuum packing facilities at the address at which she was staying. The investigating member did not accept the suggestion of defence counsel that the respondent was acting under the control of another. The third factor is whether the conduct of the accused was intended to assist a criminal organisation and, if so, the nature and scale of that organisation. In this instance, the sentencing judge identified the respondent's actions as providing assistance to a criminal gang, which it is suggested was impliedly acknowledged by the respondent through the plea in mitigation advanced on her behalf. While the nature of the organisation has not been disclosed, it is submitted that it is clear that the organisation operates on a transnational basis with access to large amounts of cash. Taken together, it is submitted that these factors demonstrate that the offence in question was on the higher end of the scale in terms of severity, and that the headline sentence imposed does not serve as a sufficient deterrent. In this way, the applicant submits that a headline sentence of three years is inconsistent with the jurisprudence of this Court and constitutes a departure from sentencing norms.

19.         With regard to mitigation, it is contended by the applicant that the credit afforded to these factors, amounting to a 43% reduction, was excessive. It is pointed out that "a further 38% was then suspended" (the final nine months of the sentence). Issue is taken that "of the 3.5 year headline, only 15 months is actually to be served (36% of the headline)".

20.         Issue is also taken with the credit afforded to the respondent for her signed plea of guilty. The applicant relies upon the dicta of Edwards J in DPP v. Nicholas Oloinu [2024] IECA 97 that this Court does not expressly endorse the rule that a discount of 30% in mitigation will be applicable in all cases where a signed plea is put forth in the District Court. An accused may have no choice but to plead if caught red-handed. It is argued that the case before this Court is one in which the accused/respondent was caught red-handed.

 

Submissions of the Respondent

21.         The respondent submits, in the first instance, that a lack of clarity as to how a headline sentence was assessed does not provide a basis for establishing an error in principle for the purposes of an undue leniency appeal. The following dicta of Edwards J in DPP v. Molloy [2018] IECA 36 is relied upon:-

"A judge is, however, otherwise at large in terms of how he or she constructs his/her sentence. The main reasons for the Court of Appeal's present reluctance to insist upon the adoption of such a procedure, as opposed to merely commending it as best practice, stem firstly from a concern that to impose too rigid and formulaic an approach could potentially unduly inhibit the exercise of legitimate judicial discretion; and secondly from a recognition that, as stated more than once by the former Court of Criminal Appeal, the failure to adhere to a particular sentencing method or formula will not necessarily result in an incorrect sentence. Neither will adherence to a method or formula guarantee the imposition of a correct sentence." (para. 14)

22.         It is submitted that the sentencing judge was clear as to how the headline sentence was reached and the  following excerpt from the sentencing remarks in relied on in support of this:-

"I take full account of her personal circumstances. I take full account of the fact that her behaviour leads her children into a difficult situation whereby they are now not entitled to the care of their mother, and what I'm going to do in the circumstances, I'm going to find that the headline of the offence is three and a half years."

23.         The respondent cites a number of comparator cases, including DPP v Sinnott, Long and Joyce [2021] IECA 42. It is said that the lower level of involvement in the money laundering attributed to Ms Sinnott, despite her concealment of a substantial amount of money and knowledge of its illegality, is comparable to the within appeal.

24.         It is submitted that there are significant mitigating factors and exceptional circumstances in this case which deserved the credit afforded by the sentencing judge; including the respondent's lack of previous convictions, the early signed plea of guilty, her co-operation with An Garda Siochana, that she is a refugee from the war in Ukraine who fled to France, where she "resultingly fell in with the persons who were instrumental in arranging the conduct the subject matter of this appeal", and that she has three children. Such matters, it is argued, were considered and given due weight by the sentencing judge.

25.         Further, it is submitted that the sentence handed down was "appropriate for the crime involved" and reflected the respondent's level of culpability and involvement; the sentencing judge did not make "a serious error by imposing this sentence that could be described as amounting to a serious breach of accepted principles of sentencing; something that is required before this court is permitted to interfere with the sentence imposed". The entitlement of trial judges to exercise their discretion, as underlined in DPP v. Kavanagh [2020] IECA 13, is emphasised.

26.         It is further submitted that the applicant appears to conflate mitigation of sentence with its suspension. It is established law that a suspended sentence is a sentence. It is submitted that it is inappropriate for the appellant to describe, or to approach, the suspended portion of the sentence as in some way attached to the initial reduction in order to construe, what is suggested to be, an inaccurate narrative that two exercises in discount for mitigation have occurred; and that actual time served is all that is relevant for sentencing.

Discussion and Analysis

27.         Section 2 of the Act of 1993 provides:

"(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the 'sentencing court') on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day on which the sentence was imposed.

(3) On such an application, the Court may either: -

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application."

28.         The following principles apply. The onus of proof rests with the applicant. This Court must afford the sentencing judge a considerable degree of latitude and ought to place great weight on her reasoning. We must be slow to intervene. Intervention will not be warranted simply because we might take a different view of the sentence imposed. The law goes further and dictates that nothing but a substantial departure from what is to be regarded as the appropriate sentence will justify intervention (DPP v. Stronge [2011] IECCA 79, DPP v. McCormack [2000] 4 IR 356).  Clear divergence from sentencing norms must be demonstrated. Such departure will not be established unless the sentence imposed falls outside the ambit or scope of sentence which is within the judge's discretion to impose. The court must also take into consideration that, having heard the evidence advanced at the hearing, the sentencing judge is in a good position to assess all aggravating and mitigating factors.

29.         We have considered the authorities to which the parties have referred, including the decision in Sinnott (para. 33 et seq) and the factors which must be considered in the determination of the headline sentence at. The seriousness of the offending is demonstrated by the amount of money involved, the role played by an accused, whether the conduct of an accused is intended to assist a criminal organisation and if so, the nature and scale of that organisation. As Ní Raifeartaigh J observed:

 "Frequently, the first two matters are linked insofar as the more central role of the person within a criminal organisation (if the evidence suggests a criminal organisation was involved), the more likely it is that larger sums of money will be entrusted to his or her safekeeping either for storage or for delivery to another. Conversely, the more peripheral the involvement of the accused with the organisation, the less likely it is that he or she will be entrusted with large sums of money." (para. 33)

There is an absence of any express evidence regarding what, if any, criminal organisation the respondent may have been involved in. It is evident, however, that the investigating Garda, when questioned as to whether the respondent was being controlled by another person, was satisfied that there were others involved:

 "To be able to hand over cash like this. You were giving directions to one person and another person is given who they're going to meet. So, it's not just her on her own, Judge. I believe there is (sic) others involved."

Nevertheless, the respondent is an intelligent, educated woman who was clearly trusted with large sums of money. She arrived in this jurisdiction the day before she was detected. The garda believed that she did so solely for the purpose of collecting and moving cash. While the evidence of the investigating garda is expressed in terms of belief, one which was not challenged, it appears to us to be a reasonable inference from all of the circumstances. The respondent, therefore, must be considered as an active participant in the transferring and movement of very significant amounts of money in breach of the legislative regime designed to tackle money laundering and which created the offence to which she has pleaded guilty. This is evidenced not only by the substantial amounts of cash found on her person, but by the paraphernalia of which she was found in possession. Several authorities have been opened to the court as examples of comparators. This court has, on a number of occasions, stated that caution must be exercised in considering comparators, as no cases are likely to be entirely similar. Nevertheless, we are satisfied that, on any analysis, the headline sentence set by the trial judge must be considered to be a nomination within the "low range". In our view, the seriousness of the offending measured by the amount of money involved, the active role of the respondent, the time at which she arrived in this country and, it must be said, her significant intellectual and educational ability and culpability is at a higher level than that which is reflected in the headline sentence of three and a half years nominated by the sentencing judge. A headline sentence of three and a half years, in our view, was too low and constitutes a substantial departure from the norm. It was outside the discretion available to the sentencing judge and thus amounts to an error in principle. The nomination of that headline sentence has had a knock-on effect on the final sentence ultimately imposed, which, we are also satisfied was too low and constitutes a substantial departure from the norm within the meaning of s. 2 of the 1993 Act, which was unduly lenient thereby warranting intervention. We are satisfied that the sentence must be quashed and the respondent must be sentenced de novo.

 

Re- Sentencing

30.         The gravity of the respondent's offending is serious. She played a significant role in the illegal handling or movement of monies. She was entrusted with large sums of money. She is not resident in this jurisdiction and arrived here the day before she was detected. Her involvement was far from happenchance nor, in our view, was it peripheral.  The respondent's travel to this jurisdiction and stay in the hotel in which the paraphernalia was found involved necessary prior arranging. We are satisfied that her involvement was premeditated and preplanned. The possession of paraphernalia and the photographs found on her phone evidence the depth of her involvement. Given the seriousness of the offending, measured by the culpability of the respondent (by reference to the amount of money involved and her role) and the harm caused to the public (in this regard we re-iterate the sentiments expressed by Whelan J in Carew), we are satisfied that the headline sentence must be within the mid-range of offending and towards the middle of that range, such as to warrant the nomination of a headline sentence of seven years in prison.

31.         There are a number of mitigating factors which we must consider. Her signed plea of guilty was made in the District Court at the earliest opportunity and within a short period after the detection of her offending. While there is evidence that the offending committed by the respondent was detected in circumstances which are suggestive of her being caught red handed, nevertheless, a signed plea is of significant value and must be treated as such. She has shown remorse through her plea.  The respondent has no previous convictions. She is the mother of children, two of whom are young. They will suffer the loss of their mother's care and company while she is serving her sentence. The respondent is a foreign national who will serve a sentence in, what for her, is a foreign country. This will likely impose additional hardship on her. Nevertheless, in our view, less weight must attach to this factor in circumstances where a person travels to this jurisdiction to engage in offending. That she fled her native country to seek refuge in France is also relevant to her personal circumstances and carries some weight as a mitigating factor.

32.         The court is mindful that it must give effect to the constitutional imperative of proportionality. A sentence must be proportionate not only to the crime but to the fact that it has been committed by this respondent. However, the court must also exercise

care to ensure that mitigation is not measured in such a way as to impose a final sentence which undermines the seriousness of the offending, or which detracts from the necessity to mark the seriousness of the crime committed.

33.         Given that the offending occurred on what seems to be a fleeting visit to this jurisdiction, that her children are being cared for in France with the resulting likelihood of her returning there on completion of her sentence, there is an element of unreality in the suspension of any part of her sentence. In fact, the Court was informed on the hearing of this appeal that Ms Budash is the subject of a deportation order which will be executed when she is released from custody. This underpins that lack of reality to consideration of part suspension of some of the sentence. In the circumstances, we are satisfied that the principles of totality  and proportionality ought to be approached in a manner similar to that recommended at paragraph 5.51 of the Law Reform Commission, Report on Suspended Sentences, in its review of part suspended sentences:

"The Commission deems it is best practice that the sentencing court begin by asking itself whether the justice of the case requires a reduction from the headline sentence, as opposed to part suspension, in order to give effect to the totality principle."

34.          Taking into consideration all of the above factors, we are satisfied that there ought to be a reduction from the headline sentence of two years and six months, thus resulting in a custodial sentence of four and a half years in prison.

35.         The court also makes an order for the confiscation of the monies.


Result:     Allow

 

 

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