A BUSINESSMAN remained in prison last night despite a court deciding his six-year jail term over a €1.6m garlic import duty scam should be reduced.
The delighted family of businessman Paul Begley joyfully embraced him when his sentence – the longest on record for tax offences – was set aside by the Court of Criminal Appeal.
But the former head of Begley Brothers Ltd will remain in prison as lawyers argue over an appropriate sentence for the businessman, who admitted disguising tonnes of crates of garlic to avoid paying higher custom tax.
The married father of three listened earnestly as the three-judge Court of Criminal Appeal found "an error of principle" had occurred and the trial judge's six-year sentence "must be set aside".
The court, led by Supreme Court Judge Mr Justice Liam McKechnie, found the trial judge had erred in principle by overlooking, or not properly taking into account, mitigating factors such as Mr Begley's "genuine remorse", his guilty plea and his agreement to pay Revenue €1.6m.
He ruled the sentence was neither "proportionate" to the "crime or criminal".
The court will hear submissions from his lawyers and the prosecution on February 4 on the sentencing of Mr Begley, who is in the Mountjoy Prison training unit.
The 47-year-old hugged and kissed the throng of friends and family – including his wife Diane, son Michael (18), mother Phyllis, sister-in-law Shelly Masterson and brother Greg, with whom he had run the business – who had crammed into the courtroom to learn his fate.
"We note the decision. We thank people for their support and we've no further comment to make at this point," Kieran Garry, a spokesman for the family, said.
Begley, from Woodlock, Redgap, Rathcoole, Co Dublin, was jailed last March after he admitted avoiding customs duty on more than 1,000 tonnes of garlic imported from China that was labelled as apples, which have a cheaper tax rate.
He later came to an agreement with Revenue to repay €1.6m in estimated evaded duty between September 2003 and October 2007.
Trial judge Martin Nolan had imposed the maximum five-year term on one count and one year to run consecutively on another count.
Mr Justice McKechnie said factors such as payment of interest and penalties in tax arrears cases was a material factor for mitigation. He pointed out the evidence showed all payments on the €1.6m figure agreed with Revenue have been made promptly, and the entire sum will be paid by the end of this year.
The State will not suffer any financial loss as a result of the offences and while payment would not leave Begley destitute, it was nonetheless a significant sum, he said.
The judge found there was little doubt but that they were "very serious offences" over a lengthy period, carried out with "personal gain" for both him and his family.
But he immediately admitted the scheme and took sole responsibility once contacted by Revenue, describing his level of co-operation as high.
"In effect, the book of evidence was entirely supplied by the appellant (Begley)," the judge found.
It had been accepted there was genuine remorse by Mr Begley and an "impressive list" of testimonials on his behalf had been handed in, including one from a direct competitor, he found.
In light of this, it was not open to Judge Nolan to impose the sentence he did, the CCA found.