Dublin Circuit Criminal Court: Judgment of His Honour Judge Desmond Hogan, delivered on 24th day of January, 2005.(prosecutor) v Raphael P. Burke (defendant)
The DPP having directed trial on Indictment the defendant was returned by the District Court to the Circuit Court on 19th January, 2004 on three counts alleging the following offences:
COUNT 1: Giving a false declaration to the Chief Special Collector contrary to s. 91(b) (ii)(E) of the Wavier of Certain Tax Interests and Penalties Act, 1993.
COUNT 2: Knowingly or wilfully furnished incorrect information in connection with tax contrary to s. 94.2(a) and 3(b) of the Finance Act, 1983.
COUNT 3: As in Count 2 above.
The Defendant pleaded guilty in this court on the 12th July, 2004 to the offences in 2 & 3.
The particulars of offence in Count 2 are as follows:
That the defendant Raphael Burke on or about the 15th day of December, 1993 in the County of Dublin knowingly or wilfully delivered an incorrect statement or furnished incorrect information in a declaration given to the Chief Special Collector who was designated as such the by Revenue Commissioners under s. 7 of the Wavier of Certain Tax Interests and Penalties Act, 1993 which was in connection with his income tax, which was incorrect by reason of the failure to include therein income in the amount of £91,980.00.
The particulars of offence in Count 3 are as follows:
That the defendant Raphael Burke on or after December, 15th 1993 in County of Dublin knowingly or wilfully furnished incorrect information by letter dated 15th day of December 1993 from McNally & Co, Certified Accountants in connection with his income tax to the Inspector of Taxes which was incorrect by reason of the failure to include therein income in the amount of £24,038. The defendant is not prosecuted for the specific offences of breeching the Amnesty Act.
Facts as to Count 2.
As a result of documents seized from the defendant's house the Revenue Commissioners formed the opinion that a Declaration of Income made by the Defendant on 15th December, 1993 considerably understated the correct income of the defendant. The defendant by his declaration of the 15th December, 1993 returned an income of £5,085 for the periods covered by the declaration and the defendant paid tax on that amount.
From the documents seized the Revenue Commissioners calculated that the amount of income which flowed from interest bearing deposit accounts should have been in the amount of £97,065. This was income from various sources in this country, Jersey, and the UK.
Credit was given for the amount £5,085 as he had declared and the figure of £91,980 referred to in Count 2 is the correct and agreed net figure that has been underdeclared and is a total figure from the sources already mentioned from the years 1982/83, 83/84, 84/85, 85/86, 86/87, 87/88, 88/89, 89/90, 90/91.
Facts as to Count 3.
The defendant furnished to his accountant incorrect information of interest on deposit earnings for the years 91/92 and 92/93 which the accountant in turn forwarded to the Revenue Commissioners. This was an attempt to adjust income on deposit interest for the years 91/92 and 92/93 and portray compliance with the requirement of the Amnesty Act. The figures submitted were not a correct statement of deposit interest for those years and were not inclusive of income to the amount of £24,038. None of these figures are included in the larger figure referred to in Count 2. The offences in Counts 2 & 3 carry a penalty of 5 years imprisonment and/or a fine of £10,000.
The Defendant
The defendant was born on the 3rd September, 1943. He is now aged 61; 62 next birthday. He was 50 years of age at the time of the commission of the offences. He has been a member of the Oireachtas since 1973 and has held various ministerial offices over the years.
Oct 1980-June 1981: Minister for the Environment
Mar 1982-Dec 1982: Minister for the Environment
Mar 1987-Nov 1987: Minister for Energy and Communications
Nov 1988-June 1989: Minister for Industry, Commerce and Communications
July 1989-Nov 1991: Minister for Justice and Communications
Nov 1991-Feb 1992: Minister for Justice.
June 1997-Oct 1997: Minister for Foreign Affairs.
As at the relevant dates in Counts 2 & 3, namely as at the making of the Declaration the defendant was not holding any ministerial position but was a minister for some of the earlier periods covered by the declaration. He is no longer a member of the Dáil and I am told he is essentially a Dáil pensioner.
The Law:- In DPP v Redmond, the Court of Criminal Appeal, 2001 held that insofar as they had been established in evidence, the personal circumstances of the defendant, the payment of a severe penalty, the immediate plea of guilty and the defendant's contrition and the co-operation were relevant matters in relation to the sentence. Since proportionality was the key principle in sentencing, the Court should endeavour to consider the cumulative sum of the penalties in assessing the amount of the final one. In deciding that the court should have consideration for the penalties paid by the defendant the court followed the reasoning of Finlay C.J. in McLoughlin v Tuite 2. I.R.82.
The appeal in the Redmond case was by the DPP on the grounds that the fines were too lenient, even though Mr Redmond was tax compliant, and had paid heavy penalties. The DPP confined his appeal for review of sentence to the proposition that the fines were too small and did not submit that a sentence of imprisonment was appropriate.
In DPP v Patrick Mitchell (an extempore) judgment of Mr Justice Geoghegan in the Court of Criminal Appeal (delivered on the 18th December, 2003). The defendant appealed the severity of a two-year custodial sentence and the severity of fines imposed. Mr Mitchell was tax compliant. The importance of tax compliance was stressed by the Court. Let me quote from the judgment.
"We are dealing with this case on the basis of a tax compliant applicant. This is very important because the obligation to pay tax is an important public obligation and it is public duty imposed by the Oireachtas by Statute. The Oireachtas has chosen to make it a crime just as much as any other crime to breach the duty to make proper returns and to pay tax.
One is dealing with criminal code but is another matter altogether as to what penalty or sentence a court may or should impose in any given case. The court has particularly paid regard in its whole approach to this case to the passage from Finlay C.J. in McLaughlin v Tuite IR at p. 82 which is referred to by Hardiman J. in his judgment in DPP v Redmond" and after quoting the relevant section from the McLaughlin v Tuite case Mr Justice Geoghegan continued:
"We have regard to that principle also, but the Oireachtas has provided for prison sentences and certainly prison sentences may be appropriate though the extent of them depends on the nature of the case.
In some cases a prison sentence may not be necessary or appropriate. In others there will be suspended prison sentence or a custodial sentence of a length appropriate to the circumstances."
The court in this reduced
the sentence of two years to six
months and dispensed with the fines imposed.
Sentence
The Defendant:-
1. Is now tax complaint and up to date with his taxes.
2. Has paid considerable penalties both on the amounts that are before the court, and in settlement with the Revenue Commissioners on matters that are not before this Court.
3. He and his advisors have fully co-operated with the Revenue Commissioners.
4. Has pleaded guilty at an early stage.
5. By pleading guilty he has saved the State a lengthy, costly and complicated trial.
The above matters are mitigating factors which I will have regard to. I am aware that the defendant is now 61 years and that he is no longer a sitting TD and is living on his Dáil pension. He is also in poor health, suffering from depression and anxiety.
There's one fact in this case that I must take into consideration and that is that at the time of the commission of these offences the defendant was a member of the Oireachtas. He was in that capacity a member of the Legislature. He was, in fact, a member of the Legislature at the time of the passing of the 1983 Finance Act under whose provisions he is now prosecuted for making an incorrect statement or furnishing incorrect information.
The Oireachtas has taken very seriously matters of Revenue as is evidenced by the powers given to the Revenue Commissioners to enforce and guard compliance and by the penalties that can be imposed for breach of duties imposed.
The offence pleaded to in Count 2 was a premeditated act of commission, not one of omission - a declaration was made to deliberately furnish incomplete information to minimise tax.
The import of this was to avail of the amnesty while still not paying the tax that would be due and calculated as per the amnesty provisions.
The offence pleaded to in Count 3 sought to compound the offence in Count 2.
Because of his special position as a Legislator during the periods covered by his declaration, the potential loss to the State, and because of it being a deliberate act, I am of the view that in committing these offences the defendant also committed a breach of trust relative to his position.
In the leading English case of Barrick 81 CR APPR at p.76 which is of pervasive authority, Lord Lane CJ set out a number of facts as relevant to sentencing decisions in cases involving breach of trust.
I do not include them all but the ones that are of relevance to this case are (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the thefts have been perpetrated and (v) the impact of the offences on the public and on public confidence and (ix) those matter of mitigation special to himself.
I would substitute the word "offence" in paragraph (ii) in this instance for the word "theft".
I add as a factor to be considered the impact of the offence on the Body Politic, having regard to the position held by Mr Burke at the time of making the declaration, and to the previous positions held by him prior to that date.
Bearing in mind the position held by the defendant as a member of Dáil Éireann as at the date of the offences and that he, as a Legislator, took part in the legislative process that affects the lives of everybody in this country; by the commission of these offences he abused a special position.
Under all the circumstances, a custodial sentence is appropriate. However, I do not believe it should be a long one, having regard to the mitigating factors already mentioned.
I impose a sentence of six months imprisonment on each count to run concurrently.