The DPP has won an appeal on a point of law over a Criminal Court of Appeal decision which led to the cutting of a 30-year sentence imposed on a man his role in a bungled attempt to bring in a record €440m drugs consignment off the Cork coast nearly ten years ago, writes Ann O’Loughlin.
Perry Wharrie (56), Loughton, Essex, England, had his 30 year sentence reduced on appeal to 17-and-a-half years over the cocaine haul at Dunlough Bay on the Mizen peninsula on July 2, 2007.
This arose out of a Court of Criminal Appeal finding that it was not an aggravating factor, in his case, that he did not give evidence at his trial, unlike two co-accused who did testify. Wharrie and the other two had pleaded not guilty.
The DPP asked to Supreme Court to determine this issue, as a principle of sentencing, and today a five-judge court found it was an incorrect principle to do so.
The Supreme Court’s decision is however "on a without prejudice basis". According to legal sources, this only deals with the issue on a general basis and does not mean this case returns to court of further consideration.
In its 2016 decision cutting Wharrie’s sentence, the Court of Appeal said he was entitled to credit for not attempting to tender false evidence.
In her arguments to the Supreme Court, the DPP’s grounds included that the failure to give evidence cannot be treated as a mitigating factor in sentencing. At most, it can be considered to be an aggravating factor and is also not a relevant factor as regards sentence, it was argued.
Wharrie opposed the DPP’s appeal.
In his judgement on behalf of the Supreme Court, Mr Justice Peter Charleton said counsel for Wharrie had put foward an "ingenious argument" for a reduction in sentence because Wharrie had not given perjured evidence.
The Court of Criminal Appeal had referred to the fact that two of Wharrie’s co- accused did testify at the trial and the sentencing judge regarded that as an aggravating factor in their cases. They received sentences of 30 and 25 years each.
Wharrie was entitled to credit for not giving evidence although this was cancelled out by his "lamentable" criminal record, which included murder, robbery and possession of a firearm, the appeal court said.
"The Court clearly regarded the decision of Perry Wharrie to shun the witness box and any attempt at perjury in defence of himself as being a significant factor", Mr Justice Charleton said.
An accused is entitled to contest a case and may be given credit for either an early plea of guilty or, to a lesser extent, an approach to the trial which saves time and money, he said.
No trial judge is entitled to aggravate a sentence because an accused gave perjured evidence in his own defence or in defence of others.
Perjury is a separate crime and is not a factor of aggravation in an existing offence, he said.
Since perjury is a criminal offence, as well as a grave moral wrong, "it defies logic to conclude that failing to tell deliberate lies under oath or affirmation somehow mitigates the seriousness of the offence", he said.
Therefore the answer to the question asked by the DPP is that it is not a correct principle of sentencing to treat as mitigation the fact that someone did not give false evidence at their trial, he said.
The trial of Perry Wharrie in 2008 heard he was was part of a gang who used a rigid inflatable boat (RIB) which met a catamaran from which the drugs were transferred.
The operation went awry after the transfer because diesel had been put in the RIB’s petrol engine which cut out causing the craft to flounder and sink in unseasonably rough July seas.
Lifeboat crews who came to the aid of the sinking RIB found one of Wharrie’s accomplices floating in the sea encircled by 65 bales of cocaine, which was subsequently found to be 75% pure.
Wharrie and another man made it ashore but both were arrested two days later.
This story has been subject to the following clarification: We have been asked to point out that in the original report supplied to it was stated that the DPP had won an appeal on a point of law over an Appeal Court decision. The report should have said a Court of Criminal Appeal decision and not Court of Appeal.