The Court of Appeal increased Brendan Smith’s fine for anti-competitive conduct from €7,500 to €45,000, after finding that the original fine was unduly lenient. It left his three-month suspended prison sentence and five-year company-director disqualification in place. The court dismissed the Director of Public Prosecutions’ application to increase the €10,000 fine imposed on Aston Carpets and Flooring Limited.
The judgment, delivered by Mr Justice Mahon on 20 June 2018, concerned a prosecution sentence review under section 2 of the Criminal Justice Act 1993. Both respondents had pleaded guilty to competition offences and were sentenced at the Central Criminal Court on 31 May 2017. Smith also pleaded guilty to an offence of attempting to impede a prosecution. The Court of Appeal could either replace a sentence it found unduly lenient or refuse the application.
The court said that between July 2012 and April 2013, Smith, then a director and manager of Aston Carpets, implemented an anti-competitive agreement with David Radburn, who operated Carpet Centre (Contracts) Limited. The judgment described allegations that the companies shared tender information and agreed in advance which would have the advantage on each of 16 open-market tenders. It said the conduct ended when the companies’ offices were raided on 30 April 2013. The court also referred to evidence that Smith sought to persuade Radburn to delete emails to frustrate the investigation and prosecution.
The DPP argued that the sentencing judge had given insufficient weight to the seriousness of the cartel conduct, deterrence and Smith’s attempt to obstruct the investigation. Smith’s mitigation included his early guilty plea, limited assistance, lack of previous convictions and personal difficulties. The company relied on its guilty plea, cooperation and financial circumstances, among other factors.
The appeal court said the sentencing judge’s use of an earlier cartel case as a reference did not amount to an error of principle. It held that the company’s €10,000 fine was within the judge’s discretion, noting that the company’s current owners and shareholders had not been responsible for the offences. The company’s fine therefore remained unchanged.
For Smith, the court said he had overall responsibility for the conduct and stood to benefit indirectly through the company. It put the financial gain from the activity at about €31,000 and said the fine should exceed that amount to be punitive and deter others. The court increased his fine to €45,000, payable within six months. It found the suspended prison sentence reasonable and proportionate and did not interfere with it. His director disqualification also remained in place.