The Court of Criminal Appeal has ruled that a six-year prison sentence imposed on Paul Begley, who was sentenced last March for evading tax due on imports of garlic, was "not proportionate" and will sit again in February to determine an appropriate sentence.
Presiding judge Mr Justice Liam McKechnie found that mitigating factors in the case had not been "appropriately or properly valued".
Mitigating factors mentioned during the court hearing included the fact that Begley had fully co-operated with the investigation and had reached a settlement of €1.6 million with the Revenue Commissioners, a payment schedule which had been adhered to and which is due to be paid in full later this year.
He noted that Begley had no previous convictions and was totally rehabilitated and unlikely ever to reoffend.
The judge said the court would consider submissions on February 4th and would specify thereafter what the appropriate sentence should be.
Begley will continue to be detained on foot of the original order of the trial court until further order of the court.
Begley (47), who wore a suit and a striped navy, blue and white tie, listened intently as the judge delivered the court's ruling. Mr Justice McKechnie said "it was not open to the trial judge, as a matter of law, to impose the sentence which he did".
"In these circumstances, this court is satisfied that an error of principle exists, and thus the sentence must be set aside."
Begley smiled as he embraced friends and family members before leaving the courtroom.
Speaking after the ruling, a spokesman for the family said: "We note the decision, we thank people for their support and we have no further comment to make at this point."
Begley, head of fruit and vegetable importers Begley Brothers Ltd, Blanchardstown, Dublin, was jailed after he admitted avoiding paying customs duty on more than 1,000 tonnes of garlic from China by having them labelled as apples.
Import duty on garlic could be up to 232 per cent, while other fruit and vegetables attracted rates as low as 9 per cent.
Begley (47), of Woodlock , Redgap, Rathcoole, Co Dublin, pleaded guilty before Dublin Circuit Criminal Court last March to evading the duty between September 2003 and October 2007. He later came to a €1.6 million settlement with Revenue.
The Court of Criminal Appeal heard the case last month and judgment was reserved.
'Greed'
Dublin Circuit Criminal Court heard last March that the import duty on garlic is "inexplicably" high and can be up to 232 per cent. In contrast, onions have an import duty of 9 per cent.
During the appeal case, Mr Justice McKechnie asked the lawyer for the DPP why there was such a divergence.
Counsel for the State, Remy Farrell SC, said the tax appeared to be “protectionism” and was aimed squarely at Chinese garlic.
While the maximum sentence for the offence is five years in prison or a fine of three times the value of the goods, Judge Martin Nolan in the lower court had imposed the maximum terms on one count and a consecutive one-year sentence on another count.
Lawyers for Begley had urged the three-judge court to review what they submitted was the longest sentence passed by a court in relation to a Revenue matter.
The State countered that there was considerable evidence before Judge Nolan that the offences were committed “for no reason other than greed”.
Patrick Gageby SC, for Begley, said that to identify the offence with the very worst of circumstances, and then to go on and impose the maximum sentence despite the “very large amount” of material in mitigation, indicated an error in principle by Judge Nolan.
Mr Gageby submitted that Judge Nolan made no reference to Begley’s guilty plea in his sentencing remarks, which constituted an error in principle distinct from any other aspect in the case.