White Collar Crime: A Tougher Approach to Sentencing?
White Collar Crime: A Tougher Approach to Sentencing?
In a highly publicised decision now over 10 years ago, Paul Begley was found guilty by the Dublin Circuit Criminal Court in 2012 of avoiding the payment of customs duty on more than 1,000 tonnes of garlic imported from China by having the product labelled as apples.
Mr Begley was subsequently sentenced to 6 years’ imprisonment. He was also disqualified from acting as a director for 5 years. While he didn’t challenge his conviction, Mr Begley appealed the severity of the sentence on the basis that he had co-operated with the investigation; repaid the tax of €1.6 million owed to Revenue; and pleaded guilty to tax evasion within a reasonable time. His appeal succeeded and his term of imprisonment was subsequently reduced from 6 years to 2 years.
For the corporate and legal community, the case marked a watershed moment in the Irish courts approach towards so-called white-collar crimes which traditionally had not resulted in custodial sentences being imposed.
In the decade that followed, we've seen further decisions of the Irish courts exhibiting decreasing levels of tolerance for the perpetrators of perceived corporate-type offences, and a willingness to impose custodial sentences. This is even in scenarios where the accused have taken steps to mitigate their wrongdoing - and sometimes in cases where they haven’t necessarily obtained any direct financial benefit as a result of their wrongdoing.
In this article, we examine some of these decisions alongside the Sentencing Guidance published by the Judicial Council in 2022.
In December 2019, the Judicial Council (an independent body, whose members are all judges in Ireland), was established to ensure excellence in the performance of judicial functions; support the independence of the judiciary; and enhance public confidence in the administration of justice.
Within the Judicial Council, a Sentencing Guidelines and Information Committee was established in June 2020. In January 2022, it published Sentencing Guidance for the General Public (the Guidance). While the Guidance doesn’t specifically deal with so-called white-collar or corporate offences, it does contain a section on tax and welfare fraud cases.
That section of the Guidance states that judges should have regard to the sentencing guidelines set out in People DPP v Maguire  IECA 310. In that case, which related to fraud and forgery offences, the court emphasised that to deliver a just and proportionate sentence in such cases, a rigorous analysis of the circumstances of the wrongdoer is necessary, but that “in no case was the starting point a non-custodial sentence…." The court also noted that judicial discretion played a specific role in:
determining the gravity of the case;
deciding the extent of mitigation to be afforded;
determining how the pursuit of the recognised objectives of sentencing should be balanced in the circumstances of the individual case;
choosing between available penalties; and
structuring of the sentence to best deliver a just and proportionate sentence.
Alongside endorsing the DPP v Maguire case as a key point of reference, the Guidance provides some specific parameters for appropriate custodial sentences in tax and fraud offences. In summary, where such offences are in the ‘low range of seriousness’, it suggests that they may attract a headline sentence of 0-40 months; increasing to 81-120 months for offences in the ‘high range of seriousness’. For serious cases, the Guidance notes that aggravating factors may include “if the motive for the crime was clearly criminal”, or where the offence had been “carefully planned”.
While the Sentencing Guidance only deals specifically with tax and welfare fraud cases, it is clear from a review of some recent sentencing decisions relating to so-called white-collar crimes for the year to date, that elements of the Maguire decision, as well as the Guidance itself are at play in judicial decision making.
DPP v Paul Hyde
Mostly recently on 27 June 2023, Mr Paul Hyde (50), former deputy chairman of An Bord Pleanála, pleaded guilty to charges relating to alleged breaches of planning law. The offences included two instances of making false or misleading declarations of interest to the planning authority. From the reporting of the case, it appears that the evidence before Bandon District Court indicated that there was no loss to the State, nor was there any material gain for the accused arising from the alleged breaches.
Nevertheless, Judge McNulty remarked that an important factor in the case was the need to show that “ethical standards in public life matter”. In his view, what made the offences particularly serious was the fact that “the work of An Bord Pleanála is quasi-judicial”, it carries out a “vast and vital function” and wields “enormous power” such that it has a strong influence and consequence for the lives of Irish citizens.
Further, Judge McNulty noted that the importance of declarations of interests was “abundantly clear” and Mr Hyde “must have been aware” of his various obligations to make accurate disclosures. Given Mr Hyde’s position, Judge McNulty stated that it was “incumbent on him to lead by example”. While “filing an annual return was easy”, it was nevertheless “essential that the declaration be full, complete and accurate”.
With these “serious aggravating factors” in mind, and a high-level of culpability, Judge McNulty did not consider a fine or community service to be adequate given the Court’s objective of including a deterrent element in sentencing. Accordingly, he imposed a two-month custodial sentence for each offence, to be served concurrently. Further, the Judge declined a request from the counsel for the accused to have the sentence suspended being declined. The decision is currently the subject of an appeal by Mr Hyde to Cork Circuit Court, and it remains to be seen if it will be upheld or commuted.
DPP v Tony Dean
On 9 June 2023, Mr Tony Dean (70), a former director of a waste management company, was sentenced by the Dublin Circuit Criminal Court to three years imprisonment (with the final 12 months suspended) having previously been convicted of three charges of breach of waste management legislation arising from the operation of an illegal landfill site in Co. Kildare.
Judge Greally noted that this prosecution had been taken due to the persistent nature of the non-compliance and the environmental impact which the offences had on the surrounding area. It was also noted that a total of c.€61m of public money had been spent to date, in remediating the site.
While Judge Greally remarked that Mr Dean was a man of advancing years, in poor health, and at a low risk of reoffending, she nevertheless ruled that a custodial sentence was warranted in the case.
DPP v Anne Butterly
On 24 January 2023, Anne Butterly (66), a former manager of Rush Credit Union, pleaded guilty to a sample set of charges arising from her theft of approximately €875,405 from the credit union over a seven-year period. The evidence put before the Court was that four different methods were developed to misappropriate the funds - including getting authorised signatures on blank cheques, taking funds from members' share accounts, unauthorised transactions on members' deposit accounts, and buying a vehicle for her husband using credit union funds.
Reports indicate that Ms Butterly submitted to Balbriggan District Court that she had taken the money to help save her husband's failing business, had since sold the family farm lands, and had repaid the credit union in full.
Judge Nolan described the case as "lamentable". While the Judge acknowledged that there had been "clear mitigation", and he noted that the accused had no previous convictions and was in failing health, he nevertheless considered the nature of the offences required the imposition of a custodial sentence. This was stated to be from the perspective of punishment and deterrence.
Accordingly, Judge Nolan imposed a sentence of two years imprisonment.
DPP v David Stamper
On 16 January 2023, David Stamper (68) pleaded guilty to 82 counts of forgery, theft and money laundering involving Citybus Employees Credit Union over a six year period. Mr Stamper, the former chair of its Board of Directors, misappropriated over €100,000 from the credit union resulting in its closure in 2019.
In terms of the facts, Mr Stamper oversaw the buying of prizes for car draws in the credit union. In and around May 2016, it was discovered that Mr Stamper asked staff to sign ‘blank’ cheques to purchase the prizes, later filled out the cheques for a larger amount, lodged the cheques to his own account, issued cheques for the correct amount from his own account, and retained the difference.
At sentencing, Mr Stamper submitted in mitigation that he had made efforts to pay back the money and had no previous convictions. However, Judge Hayes stated that a custodial sentence was necessary given the significant breach of trust and the length of period of offending. A prison sentence of two and half years was imposed with the last 18 months suspended subject to several conditions being met.
A new direction of travel?
It seems clear from these recent decisions, that judges are adopting a more methodical approach to their assessment of whether a custodial sentence should be imposed on white-collar criminals. In addition, it appears that the judiciary are taking account of the sentencing guidelines as set out in ThePeople DPP v Maguire and the Judicial Council’s Sentencing Guidance (even though it doesn’t specifically deal with the relevant criminal offences in these cases).
The key takeaway from all of this? It is also no longer correct to assume that in the case of so-called white-collar or corporate criminal offences, strong mitigation, cooperation, or indeed the absence of any financial gain on the part of a wrongdoer will necessarily be enough to see off the risk of a custodial sentence. The time has passed for these assumptions, as we move into a new era of more active enforcement.