The Supreme Court has ruled that a person convicted after trial cannot receive a reduced sentence simply for not giving false evidence. It answered a question certified by the Director of Public Prosecutions after Perry Wharrie’s sentence was reduced on appeal, but the answer was expressly given without prejudice to that existing outcome.
Wharrie was convicted by a jury in 2008 of possessing cocaine for unlawful sale or supply. The case arose after a rigid-hulled boat carrying cocaine sank off the Cork coast in July 2007. Almost 1.5 tonnes of cocaine were recovered. The Supreme Court judgment described a plan involving four men to bring cocaine from South America to Ireland.
Wharrie did not testify at his trial. Two co-accused did, and the trial judge later described their evidence as an “insult to the intelligence of the jury”. Wharrie received a 30-year sentence. In 2016, the Court of Criminal Appeal reduced it to 17 years and six months, treating his failure to give false evidence as a mitigating factor. The Director then certified the question for the Supreme Court: whether it is correct to treat as mitigation that an accused convicted after trial did not give evidence.
Delivering the Supreme Court’s judgment on 3 July 2017, Mr Justice Peter Charleton said an accused is entitled to contest the prosecution case and that conduct at trial must not be used to increase the sentence for the offence. Nor, he concluded, can a defendant receive mitigation simply for refraining from perjury. Giving false evidence under oath may constitute the separate crime of perjury, but it does not aggravate the offence for which the person was convicted.
The court recognised that a guilty plea, particularly an early one, can mitigate sentence. It also said that some steps during trial that save time and expense may be considered, such as formal admissions or a guilty plea after a legal issue has been decided against the defence. Those considerations do not make silence or the avoidance of false evidence a mitigating factor.
The court’s answer was that it is not a correct sentencing principle to treat the fact that an accused did not give false evidence at trial as mitigation. The certified appeal was stated to be without prejudice to the existing outcome; the judgment did not set aside or otherwise change Wharrie’s reduced sentence.