THE former head of the country’s biggest fruit and vegetable company must wait to learn if his appeal against his six-year sentence for failing to pay import tax on garlic has been successful after the Court of Criminal Appeal reserved its judgement today.
Paul Begley (47), of Begley Brothers Ltd, Blanchardstown, Co Dublin, avoided paying higher custom duty on over a thousand tonnes of garlic imported from China by having consignments labelled as apples which are taxed at a cheaper rate.
Last March he was jailed for six years by Judge Martin Nolan after pleading guilty at Dublin Circuit Criminal Court to four sample counts of evading customs duty between September 2003 and October 2007.
While the maximum sentence for the offence is five years in prison or a fine of three times the value of the goods, Judge Martin Nolan imposed the maximum terms on one count and a consecutive one year sentence on another count.
Lawyers for Begley had urged the three-judge court to review what they submitted was the longest sentence ever passed by a court in relation to a revenue matter.
The State countered that there was considerable evidence before Judge Nolan that the offences were committed “for no reason other than greed”.
Mr Patrick Gageby SC, for Begley, said that to identify the offence with the very worst of circumstances, and then to go on and impose the maximum sentence despite the “very large amount” of material in mitigation indicated an error in principle by Judge Nolan.
He said the sentence appeared to be the longest sentence ever passed by a court in a revenue matter.
Mr Gageby submitted that Judge Nolan made no reference to Begley’s plea of guilty in his sentencing remarks, which constituted a singular error in principle distinct from any other aspect in the case.
He said the sentencing judge had not paid due regard to the principle of proportionality by failing to identify the range of appropriate penalties available and where the offence lay on this range before going on to apply the mitigating factors in the case.
Mr Gageby told the court that Judge Nolan failed to take the issue of reparation in to account, which he submitted was highly relevant in all revenue cases.
He submitted that Begley had waived his right to silence during the investigation stage, had volunteered documents to the Revenue Commissioners and in some sense had become the architect of the case against him.
Mr Gageby submitted that Begley had agreed on an ongoing schedule to satisfy his revenue obligations, although he conceded that only a small amount of interest and no penalties had been factored in to the final figure.
He submitted that there was an obligation on all citizens to pay taxes - which Begley had belatedly complied with - and although the court was not obliged to give kudos to citizens who comply with these obligations, it should take in to account whether reparations had been made.
Judge Nolan had made “absolutely no” mention of the reparations made by his client, Mr Gageby said, which amounted to an error in principle.
Mr Gageby said that the counts on the indictment referred to a revenue liability of €300,000, and although the judge was informed of a much larger liability of €1.6 million arising out of the fraud, there was an obligation to sentence only on the counts on the indictment and the court could not take the other matters into account.
He said that Judge Nolan appeared to have erroneously taken the view that the principle of deterrence “trumped other principles”, and submitted that the failure to pass a condign punishment on those who cooperated with the law could have a “chilling effect” on future cases.
Counsel for the State, Mr Remy Farrell SC, told the court that one of the most important aspects to consider was the weight of evidence that went before the sentencing judge of the offences having been committed “for no reason other than greed”.
He said Begley’s plea was entered on the agreement that full facts would be heard, and the defence had introduced the matter of the €1.6 million liability on the basis the court could take in to account the punitive aspect of the overall outstanding amount.
Mr Farrell said the amount of money defrauded clearly meant the offence was at the “very highest end” of the scale of seriousness and had also involved malice, forethought and the involvement of others.
Asked by presiding judge Mr Justice Liam McKechnie as to why there was such a divergence from the norm on the import duty on garlic, Mr Farrell said the tax appeared to be “protectionism in the very old fashioned sense” and was aimed squarely at Chinese garlic.
He said the case was one where the principle of deterrence “must come very much to the fore”, as the counts related to a series of offences that were very difficult to detect and had been happened upon only by a chance inspection.
Mr Farrell submitted that reparations made by Begley should carry “substantially less weight” than might otherwise be the case, as punitive interest and penalties had not been levied upon him and he had not been “beggared” by the payment of his liabilities.
Despite what he defined as “somewhat terse” sentencing comments, Mr Farrell said the term imposed by Judge Nolan was not disproportionate when the totality of the matter was considered.
Mr Justice McKechnie, sitting with Mr Justice Eamon deValera and Mr Justice Brian McGovern, said the court would return judgement in the immediate future.