Man's jail term cut as judge rules no tax owed

Tue, Dec 4, 2012, 00:00

A father of 10 children who was jailed for four years for fraudulently claiming over €40,000 in social welfare benefits and for failing to pay €1.65 million in tax has had his sentence reduced by 18 months after it transpired that he owed no income tax.

The Court of Criminal Appeal yesterday evening reduced the sentence imposed on 43-year-old Daniel Kelleher, with a last address at Stoneridge, Shanakiel, Cork, after hearing new evidence that his income tax liability was nought.

In November last year, Kelleher was jailed for four years by Judge Patrick J Moran at Cork Circuit Criminal Court after pleading guilty to 12 sample charges out of 35 charges on indictment.

Judge Moran imposed consecutive 18-month and 12-month sentences on Kelleher for failing to furnish an income tax return for the year 2007 and for failing to remit VAT for the period November to December 2006.

He imposed a further consecutive 18-month sentence for making false declarations culminating in the overpayment of €41,000 in jobseeker’s allowance.

Unique case

The court heard that the case, a joint prosecution by the Revenue Commissioners and the Department of Social Protection, and advanced by the Director of Public Prosecutions, was the first of its kind.

Counsel for the applicant, Diarmaid McGuinness SC, yesterday told the three-judge court it transpired that tax credits owed to Kelleher offset his liability in terms of income tax and VAT to a nil balance.

Returning an extemporary judgment, Mr Justice Liam McKechnie said the responsibility to return the taxes owed by Kelleher lay with Kelleher only, but because this had not taken place he could not have objected in any way to the evidence of Aidan Murphy of the Revenue Commissioners.

Not indebted

However, he said it was undoubtedly the case that the sentencing court heard Kelleher was indebted to Revenue to the sum of €1.6 million, when he was actually not indebted at all.

Mr Justice McKechnie said the court was satisfied that Judge Moran had attached some weight to the evidence when imposing sentence, and it was likely that if the true facts had been known the same sentence would not have been imposed.

He said that, due to the risk that an injustice to Kelleher may have occurred, the appeal court would intervene and set aside the original sentences imposed with regard to the income tax and VAT matters.

Mr Justice McKechnie said the court had regard to Kelleher’s guilty plea, his remorse and his personal circumstances, including the fact that he has 10 children and his wife is ill. However, he said the court noted the seriousness of the offences and that the tax liability was a very significant charge not diminished by “per chance circumstances”.

Concurrent sentence

With respect to the income tax count, Mr Justice McKechnie said the court would reduce this to a 12-month sentence and order that it run concurrent to the sentence on the VAT count, which would remain at 12 months.

He ordered that these sentences run consecutively to the 18-month sentence imposed on Kelleher for making false declarations with regard to social welfare payments.

Mr Justice McKechnie said this meant that the overall sentence would be reduced to 2½ years, which the court considered an appropriate one.