Sentencing in a company price-fixing prosecution should be increased in order to safeguard the deterrent value of the law and encourage whistleblowers, lawyers for the Director of Public Prosecutions (DPP) have argued.
It brought an undue leniency application in the case of Brendan Smith, a former carpet company employee who was fined €7,500 for price fixing at the Central Criminal Court last year.
He was also given a three-month suspended prison sentence for attempting to impede the prosecution while, separately, the company he worked for at the time, Aston Carpets, was fined €10,000.
It followed an investigation by the Competition and Consumer Protection Commission (CCPC).
At the Court of Appeal on Thursday, Shane Costelloe SC for the DPP argued the sentences should be re-evaluated on a number of grounds, noting that the total amount of fines imposed amounted to “just over half of the ill-gotten gains...of the criminal behaviour,” which had been placed at about €31,000.
“One can ultimately never repair the damage of these types of criminal acts because what you have is an offence against society at large,” he told the three judge court.
Smith, of Greenane, Dunshaughlin, Co Meath, pleaded guilty in April, 2017 to engaging in and implementing an anti-competitive agreement between July 2012 and April 30th, 2013, contrary to the Companies Act 2002.
The maximum penalties for the offences are a fine of up to €5 million and 10 years in prison for price fixing and up to five years imprisonment for obstructing a prosecution.
Smith had rigged tenders with rival company Carpet Centre (Contracts) Ltd for clients that included Google, Mastercard and Paypal. The average price of the contracts was €137,000.
The scam was exposed by David Radburn of Carpet Centre who sought immunity from prosecution.
Mr Costello argued that Mr Justice Patrick McCarthy at the Central Criminal Court had erred in his approach to sentencing guidelines based on case law and that he had been too lenient.
He also took issue with his view that the offences had affected larger companies and not “end of line” consumers.
“It’s the entirety of society that ultimately becomes affected by these acts,” Mr Costello said.
Mr Justice John Edwards, at the Court of Appeal, said this point had referred to the idea that big companies had larger resources to absorb the damage of such criminal activity.
Mr Costello argued, however, that the level of sentencing was “simply not a deterrent” and that it is “absolutely no incentive to people who may choose to be a whistleblower”.
“The court has to say, ‘we need to send a clear signal that this type of behaviour won’t be condoned’,” he said.
Responding to his points, Mr Justice Edwards said the courts must strike a balance between retribution, deterrence and rehabilitation and that while deterrence is important, the sentence must be proportionate to the crime.
Patrick Gageby SC, representing Aston Carpets, argued against a larger fine and said the value of the price fixing amounted to between just 1 and 1.5 per cent of the overall contracts.
On the issue of a deterrent effect, Smith’s barrister, Michael O’Higgins SC, said the prosecution had had “a very significant deterrent effect” on his client.
“The sentence that was imposed by the judge, in my respectful submission, was proportionate,” he said. The court has reserved judgement.