The DPP has won an appeal on a point of law concerning a decision which led to a major reduction of a 30-year sentence imposed over a man’s role in a bungled attempt to bring in a €440 million drugs consignment off the Cork coast.
Perry Wharrie (56), Loughton, Essex, England, had his sentence concerning the July 2007 cocaine haul at Dunlough Bay on the Mizen peninsula reduced by the Court of Criminal Appeal to 17½ years.
The Court of Criminal Appeal found the fact he, unlike two co-accused, did not give evidence at his trial was not an aggravating factor in his case. While saying he was entitled to credit for not giving evidence, it added that was cancelled out by his “lamentable” criminal record. All three accused had denied the charges.
The DPP later asked the Supreme Court to decide whether the Court of Criminal Appeal, as a principle of sentencing, was correct in the matter.
A five-judge court found it was not a correct principle and said an offence was not mitigated because an accused had chosen not to tell deliberate lies, but stressed its decision was on a “without prejudice” basis, meaning the decision was on a general basis with no implications for Wharrie’s prison term.
Credit
In its 2016 decision cutting Wharrie’s sentence, the Court of Criminal Appeal said he was entitled to credit for not attempting to tender false evidence.
In arguments to the Supreme Court, the DPP contended the failure to give evidence could not be treated as a mitigating factor in sentencing. At most, it could be considered an aggravating factor and was not a relevant factor as regards sentence, it was argued.
Lawyers for Wharrie opposed the DPP’s appeal.
In his judgment on behalf of the Supreme Court, Mr Justice Peter Charleton said counsel for Wharrie had put forward 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 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 that was cancelled out by his “lamentable” criminal record, which included murder, robbery and possession of a firearm, the appeal court said.
The Court of Criminal Appeal “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 guilt or, to a lesser extent, an approach to the trial which saves time and money, he said.
Perjury
No trial judge was entitled to aggravate a sentence because an accused gave perjured evidence in his own defence or in defence of others, he said. Perjury was a separate crime and 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.
The trial of Perry Wharrie in 2008 heard he 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 per cent pure.
Wharrie and another man made it ashore but both were arrested two days later.
*This article was amended on July 5th 2017