The Court of Criminal Appeal has set aside a six-year jail term imposed on a businessman for failing to pay duty of about €1.6 million on garlic imports.
Paul Begley, head of fruit and vegetable importers Begley Brothers Ltd, Blanchardstown, Dublin, was jailed last March after he admitted avoiding customs duty on more than 1,000 tonnes of garlic from China by having them labelled as apples.
Import duty at the time was 9 per cent on apples while on garlic it was 9.6 per cent plus €120 per 100kg – in effect amounting to a tax rate of up to 232 per cent.
Guilty plea
Begley (47), of Woodlock, Redgap, Rathcoole, Co Dublin, pleaded guilty in the Dublin Circuit Criminal Court to evading the duty between September 2003 and October 2007 and later came to an agreement with Revenue to repay €1.6 million in estimated evaded duty.
The tax fraud scheme was uncovered in 2007 when a Revenue officer at Dublin Port examined a container imported from China which should have contained 18 tonnes of apples and two tonnes of garlic but which contained only garlic.
Judge Martin Nolan sentenced Begley to the maximum of five years on one of four counts of evasion and to one year consecutive on another count, and disqualified him from acting as a director of a company for five years.
Begley appealed, arguing the trial judge ignored the fact he had made restitution and had been given a maximum sentence, normally reserved for the worst cases. The DPP argued the sentence was justified and should stand.
Yesterday, the appeal court ruled Judge Nolan had erred in principle by overlooking, or not properly valuing, a number of mitigating factors pleaded on Begley’s behalf.
Not proportionate
The sentence was therefore not proportionate to both the crime and the criminal, the appeal court said.
Begley remains in jail, however, until the Court of Criminal Appeal hears submissions from defence and prosecution counsel on what his sentence should be. The court adjourned the matter to February 4th.
Mr Justice Liam McKechnie, on behalf of the three-judge appeal court, said it had always been considered that restitution and ancillary punishments such as payment of interest and penalties in tax arrears cases was a material factor for mitigation.
Begley had agreed to repay the €1.6 million of evaded duty, under a schedule due to be completed next November and all payments had been promptly made, he said.
Consequently, the State would not suffer financial loss.
It had been accepted there was genuine remorse by Begley and an “impressive list” of testimonials on his behalf had been handed in, including one from a direct competitor.
He had no previous convictions and was unlikely to ever reoffend, he said.
While such factors were not uncommon in tax fraud cases, it went without saying that these matters “cannot be simply stood down or ignored”, he said. In view of this, it was not open to Judge Nolan to impose the sentence he did, Mr Justice McKechnie said.