Tax advisor jailed for defrauding Revenue has appeal thrown out
A tax advisor who processed VAT returns for two clients with the intention of dividing the money recovered, has had an appeal against his prison sentence dismissed by the Court of Appeal.
Kenneth Shanny (39), with a last address at Supple Hall, Dunshaughlin, Co Meath, had pleaded guilty at Trim Circuit Criminal Court to aiding, abetting, assisting, inciting or inducing another person to make or deliver an incorrect return as well as claiming or obtaining relief or exemption from repayment of tax on dates between November 2009 and April 2010.
He was sentenced to three years imprisonment with the final 18 months suspended by Judge Michael O'Shea on November 11, 2015.
Shanny had an appeal against sentence dismissed today with the Court of Appeal holding that his sentence was within the available range.
Giving judgment, Mr Justice Alan Mahon said Shanny was an accountant and tax advisor who processed VAT returns for two clients with the intention of dividing money recovered in this way between them.
The amount was €62,000 and Shanny's two coaccused received entirely suspended sentences.
Shanny had previously been convicted of theft while working for another company and he served a sentence between April 2011 and December 2012, Mr Justice Mahon said.
His barrister, Katherine McGillicuddy BL, submitted that there was unfair disparity between her client's sentences and his co-accused's, that the judge wrongly placed the offence on the higher range and that he failed to provide appropriately for rehabilitation.
Ms McGillicuddy said the sentence was not proportionate in all the circumstances.
Mr Justice Mahon said Shanny had left school in 1994 and trained as an accountant. He had worked for a number of accountancy firms before setting up his own practice in Dunshaughlin.
He had developed a serious drug habit at the age of 15 which, by the age of 22 involved heroin and crack cocaine. At the height of his addiction his habit was costing €1,000 per day, Mr Justice Mahon said.
At the time of sentence, Shanny was in stable accommodation and was debt free. He had addressed his drug problem while serving his previous sentence. He had not come to adverse garda attention and was deemed to be at a low risk of reoffending.
The sentencing judge identified the aggravating factors as the breach of trust in his capacity as an accountant making VAT returns on behalf of clients. He described it as systematic and substantial dishonesty and fraud. There was also substantial loss to the Revenue.
Furthermore, a distinguishing factor between Shanny and his coaccused was that, in his capacity as an accountant dealing with the Revenue, he was in a position of trust and he abused that trust.
In mitigation, the sentencing judge referred to his guilty plea, his remorse, co-operation with the probation services and rehabilitative steps already undertaken by him.
Mr Justice Mahon said the manner in which the sentencing judge arrived at his sentence was criticised on the basis that best practice was not followed.
A sentencing court must first establish the range of penalties available, the gravity of the offence, where on the range it would lie and then the level of punishment to be imposed, as had been submitted by Shanny's barrister, Ms McGillicuddy.
Mr Justice Mahon said that while this criticism may be “well made”, it was nevertheless open to the judge to accurately identify the relevant facts. He said the failure to follow best practice is not necessarily a reason to interfere with a sentence.
Mr Justice Mahon, who sat with Mr Justice George Birmingham and Mr Justice Garrett Sheehan, said the sentence was within the range available.
The appeal was therefore dismissed.