The Court of Appeal has increased Garret Hevey’s sentence for fraudulent trading from five years, with the final year suspended, to six years’ imprisonment. It quashed the sentence imposed by the Circuit Court on the Companies Act offence and imposed a six-year term without suspension. The court did not alter the concurrent three-year sentences for three deception counts.
The appeal was brought by the Director of Public Prosecutions under section 2 of the Criminal Justice Act 1993, on the ground that the sentence was unduly lenient. Hevey had pleaded guilty. The Court of Appeal said the fraudulent trading was among the most serious offences of its type and that an appropriate headline sentence was about nine years before mitigation. It held that the sentencing judge had set the headline sentence too low and given too much weight to mitigating factors.
The court said about €5.5 million passed through Arden Forestry Management Limited’s account between January 2014 and June 2016, representing investments from 143 investors. The company had bought 30.2 acres of forest, although 858 acres should have been acquired if the investment money had been used as intended. Investors were offered returns linked to grants, tree thinning and forest resale. The court identified the scale of the sums, the number and harm to investors, the targeting of overseas investors and the transfer of funds abroad as principal aggravating factors.
The judgment recounted evidence that investors were given false documents and names were used in the company’s dealings. It also described how investor payments presented as grants or thinning returns were funded from later investments. The trial judge had rejected the description of the operation as a Ponzi scheme, but concluded it was calculated fraud; the appeal court did not adopt the Ponzi label.
The appeal court credited Hevey’s guilty plea, admissions to Gardaí in June 2016, some assistance with repayment of funds from the United Arab Emirates, lack of previous convictions, prior good character, family commitments and likely difficulty finding future work. It said the plea was relatively late. The court rejected the argument that the uncompleted offer to return funds was a significant mitigating factor, but said any error by the sentencing judge in considering it could not have significantly affected the sentence.
The new six-year sentence followed a one-year reduction for the guilty plea, a further one-year reduction for other mitigation, and an additional reduction because Hevey was being resentenced after the appeal. The court said it was limiting its intervention in light of the possibility that he had been working towards release after four years, subject to usual remission. It added that a significantly higher sentence might be appropriate at first instance in an analogous case.