The High Court has refused a challenge to the constitutionality of the summary penalty for certain tobacco tax offences, finding that judges retain a range of sentencing options. The decision does not determine the facts of the alleged offence or impose a sentence in the criminal case.
Nicolae Dumitran was charged by summons with offering for sale one kilogram of tobacco without the required tax stamp. The alleged sale took place at Artane Castle Shopping Centre car park in Dublin on 5 December 2018. The judgment says Dumitran intended to plead guilty. The circumstances he described—including that he had bought the tobacco for personal use and advertised an unopened pack for sale—were not tested in evidence, and the court made no findings about them.
The challenge concerned section 78(5)(a) of the Finance Act 2005, which provides for a €5,000 fine on summary conviction, or imprisonment for up to 12 months, or both. A judge may reduce the fine by up to half, but not below €2,500. The plaintiff argued that the minimum fine could be disproportionate, particularly for an offender unable to pay it, and that imprisonment would also be disproportionate in his circumstances.
Justice Mark Sanfey held that the fine was not a fixed penalty because the District Court could choose among a fine, imprisonment, or both. The judge may suspend all or part of a prison sentence, and may consider community service where the statutory conditions are met. The High Court rejected the argument that a judge must first decide imprisonment is appropriate before imposing a fine.
The court also rejected the claim that the statutory penalty lacked a rational relationship to the requirements of justice. It relied on the Supreme Court’s reasoning in *Osmanovic v Director of Public Prosecutions*, including that a suspended sentence may be considered where an offender cannot pay a fine. Sanfey said the trial judge could fashion a sentence suited to the circumstances if Dumitran were convicted.
The court did not grant the declaration sought. It did not decide the appropriate sentence, assess the plaintiff’s personal circumstances for sentencing, or rule on the truth of his account. The judge invited written submissions on any further orders, particularly costs, within 14 days. Those orders remained to be made.