THE COURT OF APPEAL
Birmingham P. Edwards J. Hedigan J. Record No: 253/17
THE PEOPLE AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
Appellant
Judgment of the Court delivered on the 3rd of October, 2018 by Mr. Justice Edwards
Introduction:
1. On the 26th of October 2017, the appellant in this appeal was sentenced to thirty-two concurrent sentences of four years' imprisonment imposed upon her by Dublin Circuit Criminal Court, to date from that date. The imposition of these sentences followed her signed pleas of guilty; to fifteen counts of theft, contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001; a single count of larceny, contrary to s. 2 of the Larceny Act 1916, as amended by s.9 of the Larceny Act 1990; a single count of forgery, contrary to s.2 of the Forgery Act 1913; and fifteen counts of fraud, contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
2. These thirty-two signed pleas were sample counts intended to be representative of 1,320 charges in total, arising out of the fraudulent negotiation of 660 individual cheques. At the sentencing hearing, the court was informed that they were acceptable to the Director of Public Prosecutions on the understanding that the evidence at the sentencing hearing would be presented on a full facts basis.
3. The appellant now appeals to this Court against these sentences.
The evidence as to the facts
4. The appellant was employed as secretary and personal assistant to two professional people, who were members of the same profession, both of whom had offices in close proximity. Her duties and responsibilities were secretarial, administrative and accounting. In order to discharge her duties, the appellant had been given full access to her employers' banking details, and she was required to lodge cheques received by them in discharge of professional fees due to them to their respective bank accounts, and to make appropriate book-keeping entries to record such receipts. The appellant would use an automatic teller machine (ATM) in a nearby branch of the Bank of Ireland to make such lodgements.
5. In March 2014, a Ms. Siobhan Gallagher, a bank official with Bank of Ireland who was acquainted with both injured parties from regular business dealings with them, took up a new position as Customer Service Assistant Manager at the branch of Bank of Ireland, at which the said ATM was located. Her responsibilities included customer service, administrative duties and the processing of cheques made at ATM's within the branch.
6. On the 8th of March 2015, Ms. Gallagher was processing a batch of cheques which had been lodged via an ATM in the said branch, when it came to her attention that a cheque, in the amount of €3,382.50, lodged at 3.32pm by the appellant, but payable to one of her employers, had been lodged to the appellant's personal bank account. She compared this cheque to another one, in the amount of €615.00, lodged by the appellant on the previous day, which had been lodged to a different account. Ms. Gallagher became suspicious that something was not right, and brought the matter to the attention of her branch manager. He in turn referred the matter to the Bank of Ireland's internal fraud investigation department, who closely scrutinised the appellant's personal bank account with Bank of Ireland and discovered that a vast number of third party cheques had been lodged to that account since 2012, and that all of the third party cheques had initially been payable to her employers, the two injured parties. The cheques in question had all been endorsed by the appellant and lodged to her personal account rather than to the appropriate employer's account.
7. The injured parties were contacted and advised of the situation. They in turn met with the appellant and confronted her with the evidence, whereupon she tendered her resignation. The matter was subsequently reported to An Garda Síochána, who commenced an investigation.
8. The appellant was co-operative with the Garda investigation and attended at a Garda station for the purpose of being interviewed on seven occasions. She made full admissions, and it emerged that the offending conduct went back to 2001, involved the fraudulent negotiation of cheques through two banks, namely Bank of Ireland and Allied Irish Banks, spanned a fourteen year period and involved a sum of €1,187,616.07 in total.
9. No single transaction was for more than €5,000.00, and the loss was not split 50:50 between the two injured parties. One injured party was at the loss of €719,099.74 and the other was at the loss of €468,516.33. The first injured party secured compensation in civil proceedings for negligence of €120,000 from Bank of Ireland and €418,000 from Allied Irish Banks, leaving a deficit of €181,099 in his case. The second injured party also secured compensation from financial institutions totalling €323,849.93, leaving a deficit in his case of €144,660.40.
10. The appellant exhibits no trappings of wealth and the Garda investigation team was unable to determine exactly how the monies stolen were dissipated.
The impact on the victims
11. Neither injured party wished to make a victim impact statement. It was acknowledged on behalf of the appellant that the injured parties had treated her with great consideration, notwithstanding the breach of trust that had been uncovered. Although she was suspended from her employment once the thefts were suspected, the injured parties at first maintained that she was ill in order to protect her public reputation. They met with her privately and offered her the opportunity to explain what had been revealed to them. The appellant was unable to offer any explanation but indicated that she was very, very sorry. She later delivered a letter to the injured parties via an intermediary, acknowledging that she had betrayed them and again expressing remorse.
12. The injured parties have made it known that they do not wish to see the appellant sell her family home in order to repay them.
The appellant's personal circumstances
13. The sentencing court heard that the appellant was born on the 5th of March 1970, and was 47 years of age at the time of her sentencing. She has two children and lives with them in a suburban home in Skerries. This family home was financed by a mortgage which is currently in arrears. The appellant was in a nineteen year relationship with a man, the father of her two children, and has been estranged from him for some time. They met in Australia and although they never married, they lived together until he left the family home in December of 2014. The relationship was described by counsel as being "very fractured". It was suggested that the appellant's estranged partner had been very controlling of the appellant, had subjected her to domestic abuse and had deprived her of funds for the children and their maintenance. Part of the stolen funds were used in discharge of mortgage payments on the house, as the appellant's estranged partner did not contribute towards paying the mortgage after they parted.
14. The appellant is devoted to her children, a son and daughter, who are now in fact young adults. Both are college students. She told a counselling psychotherapist, whom she has been attending and from whom the sentencing judge had a report, that although she never applied the stolen funds for anything other than her own basic needs, and did not use them to fund a lavish personal lifestyle, she did use them to ensure that her children wanted for nothing. Although the appellant's former partner maintains a level of contact with his son, he maintains no contact whatsoever with his daughter.
15. For some time the appellant had been partially caring for her father, a recovering cancer sufferer, and continued to do so up until her sentencing . She lost the support of her wider family and many in her former circle of friends. Many of those to whom she confessed what she had done had reacted with disgust, judgment and by abandoning her. The appellant is profoundly ashamed of her actions and, prior to her sentencing, had become reclusive and was by that point avoiding former friends and other relatives.
16. The evidence was that the appellant's offending had begun insidiously, the appellant taking money to meet urgent domestic needs, particularly to pay the mortgage and maintain her children, with the belief that she could, and intention that she would, repay the monies taken. However, a point was reached where that was no longer a realistic possibility and she continued to misappropriate funds. She was relieved at getting caught as she was no longer required to lead a false existence. The sentencing court was told in the plea in mitigation that the appellant wanted to be punished, although the court was urged to be merciful.
17. The appellant has experienced suicidal ideation in the depths of her despair. Her psychotherapist has expressed concern that she is at high risk for suicide.
18. The appellant has no previous convictions, and the evidence was that she is unlikely to re-offend.
19. She was prepared to sell her house to make such restitution as she can, but the injured parties were resolute that they did not want her to do this.
20. Written testimonials were provided to the sentencing court from friends and neighbours of the appellant, confirming that she had been a good neighbour and a positive contributor to the community in which she lived. The sentencing court also received poignant letters from the appellant's children, and from her father, confirming that she had been a good mother and daughter and is much loved by them.
The sentencing judge's remarks:
21. In sentencing the appellant to imprisonment for four years, the sentencing judge made the following remarks:
JUDGE: "The Court is dealing here with charges which came to this Court by way of signed plea from the District Court and there was 32 sample counts of 1,320 charges, which reflected the full nature of the offences which occurred over a period of 14 years. And the Court, on the previous occasion, heard from the prosecuting member of An Garda Síochána, and there was the number 660 cheques involved. And the Court has the benefit of a number of testimonials handed in on behalf of Ms Maguire and also a number of letters from immediate family and friends. And the Court is taking into account, and well into account, the contents of those letters and in particular, the letters from her children, who are of young age and not financially independent and the Court is taking into account, and well into account, the consequences of this offence on them.
The circumstances surrounding the commission of this offence was outlined on the previous occasion. The injured parties in this case shared a secretary, who was Ms Maguire and she was -- these charges date back to May of 2001 and the parties -- the amount involved was €1,187,616.07. Bank of Ireland and AIB accepted some part of negligence in the case and reimbursed the injured parties, but the banks, while they gave an element of compensation, there was a deficit to the first injured party of €181,099, and the second injured party of €144,666.40. The injured parties, through counsel for the prosecution, made it clear to the Court that they don't wish Ms Maguire to lose her house and her particular personal circumstances have been opened to the Court. I've already mentioned her children. I've also a letter from her father and I've also the benefit of a psychologist's report.
The aggravating factors, obviously, are the very serious nature of this charge, the amount involved, which was €1,187,616.07. It occurred over a long period of time of 14 years. It was a complete breach of trust. And the mitigating factors are her plea, her early plea, the value of that plea to the State, the full admissions she made at interview, the fact she has no previous convictions, she hasn't come to adverse guard attention since, the remorse she's expressed and the prosecution accepts that that remorse is genuine. The prosecuting member also says that it is his view that Ms Maguire will not reoffend. The Court has been -- opened to the Court an authority in the case of DPP and a person who was owing money to the Revenue Commissioners and not handing over the VAT, and that case can be distinguished from this case because the breach of trust in this case, being a secretary of two people, who, more than likely the persons met every day over a period of 14 years and the amount of monies involved, and the breach of trust in this case is a very serious aggravating factor, and that breach of trust, while there was a fiduciary duty on behalf of the defendant in the other case to pay over VAT, the breach of trust in this case is a differentiation between that case and this and is a serious aggravating factor.
The Court has taken all matters into account and the Court, in marking the seriousness of the offence, but also taking into account the personal circumstances of Ms Maguire, will impose a prison sentence of four years' imprisonment on each count, concurrent."
DEFENCE COUNSEL: "Is the Court minded to suspend any part of that?"
JUDGE: "No."
The grounds of appeal 22. The appeal is advanced on fourteen grounds, as follows: 1. The sentencing judge was excessive and/or unduly severe and/or disproportionate in imposing a sentence of four years' imprisonment;
2. The sentencing judge was excessive and/or unduly severe and/or disproportionate in failing to consider suspending the sentence in its entirety or in part;
3. The sentencing judge erred in law in failing to structure a sentence balancing the punitive, deterrent and rehabilitative elements, and in failing to structure a sentence proportionate to the circumstances of the particular offender;
4. The sentencing judge erred in principle in failing to give any or sufficient weight to the mitigating factors;
5. The sentencing judge erred in principle in failing to give any or sufficient weight to the fact that the appellant had entered a plea of guilty at an extremely early stage, in that she had been sent forward from the District Court on signed pleas of guilty and had waived her right to a book of evidence;
6. The sentencing judge erred in principle in failing to give any or sufficient weight to the fact that the appellant had admitted her guilt to her employers prior to any Garda investigation, had cooperated fully with the Garda investigation once it began and had made seven, separate, voluntary interviews, in the absence of a solicitor where she, at all times, acknowledged her guilt;
7. The sentencing judge erred in principle in failing to give any or sufficient weight to the full assistance given by the appellant to the Gardaí and the time and expense saved as a result;
8. The sentencing judge failed to have any or any adequate regard to the fact that the appellant had no previous convictions and had not come to adverse attention since the commission of the offences;
9. The sentencing judge erred in principle in failing to give sufficient weight to the fact that Detective Garda Faulkner indicated that he did not believe that the appellant was likely to re-offend;
10. The sentencing judge failed to attach adequate weight to the fact that the appellant was genuinely apologetic and remorseful for her actions;
11. The sentencing judge erred in principle in failing to place sufficient weight upon the appellant's personal circumstances, in particular the effect the sentence would have on her children;
12. The sentencing judge erred in law by failing to identify a headline sentence based on the gravity of the offence. Consequently, it is impossible to identify any discount afforded by the sentencing judge in respect of mitigating factors, including the plea of guilty and the appellant's personal circumstances;
13. The sentencing judge erred in principle by placing a disproportionate weight on the aggravating factors in the case;
14. The sentence imposed by the sentencing judge was excessive and disproportionate having regard to all the circumstances of the case.
Submissions on behalf of the Appellant 23. The complaints emphasised in the written and oral submissions have centred on the appellant's belief that the sentencing judge erred, by either; over-assessing the gravity of the case on account of attaching too much significance to the aggravating factors, or alternatively; attached insufficient weight to the mitigating factors, or alternatively; erred in both respects. Counsel for the appellant complained that, although it is clear from his side's perspective that there was an error, he is unable to isolate it more precisely because the sentencing judge did not identify any headline sentence, nor what discount she was affording for mitigation. The parties and this Court are simply presented with a bottom line figure of four years' imprisonment but with no indication as to how the sentencing judge arrived at that figure. It is acknowledged that the failure to follow this Court's recommended best practice will not per se amount to an error of principle, and that we have said that where a different approach is followed we may still be prepared to uphold a sentence if it looks right. However, counsel for the appellant contends that the sentence in this case is simply too severe and manifestly wrong on that account.
24. Counsel for appellant acknowledges that the sentencing judge does state in her sentencing remarks that she has had regard to the pleas, the fact that they were early pleas, the appellant's admissions, her lack of previous convictions, her genuine remorse and the unlikelihood of re-offending. However, it has been urged upon us that "while bare reference may have been made to these factors over the course of a very short ruling, they were not given the weight they deserved."
25. In detailed written submissions filed on behalf of the appellant, we were referred to academic commentary and jurisprudence in support of the requirement to afford due mitigation for various factors and in particular for early pleas of guilty, for co-operation, for remorse, and for the absence of previous convictions. The cases relied on include; The People (Director of Public Prosecutions) v Kelly [2015] IECA 332 ; The People (Director of Public Prosecutions) v O'Neill [2015] IECA 327; The People (Director of Public Prosecutions) v Begley [2013] 2 IR 188 at 212-213; The People (Director of Public Prosecutions) v Perry [2009] IECCA 161; The People (Director of Public Prosecutions) v Lyons [2014] IECCA 27; The People (Director of Public Prosecutions) v Doherty (unreported, Court of Criminal Appeal, 29th April 2001), and; The People (Director of Public Prosecutions) v Mooney [2015] IECA 301. This is jurisprudence which is uncontroversial, well known, and with which the Court is fully familiar. Accordingly, it is unnecessary to specifically review it in the course of this judgment. It will suffice to say that we accept without hesitation that the law on the entitlement to, and extent of, mitigation to be afforded under the headings identified is as was submitted.
26. In the plea in mitigation in the court below, counsel for the appellant had also sought to rely upon The People (Director of Public Prosecutions) v Campbell [2014] IECA 15. The Campbell case, which concerned a VAT fraud involving a sum not dissimilar to the sum misappropriated in the present case, was relied upon in support of a suggestion that the present case was one in which it would have been open to the sentencing judge to adequately mark the censure of society, and provide sufficiently for general deterrence, by having recourse to a wholly or nearly wholly suspended sentence. Counsel acknowledged in his submission to the court below that the Court of Appeal had seen fit to intervene and find wholly suspended sentences of three years' imprisonment initially imposed in that case to have been unduly lenient, and to substitute sentences of eighteen months' imprisonment (with the final six months suspended to compensate for the fact that the respondent would have to go into custody having been at liberty in circumstances where he had understood that he had escaped a custodial sentence). However, counsel for the appellant sought to differentiate Mr. Campbell's situation from that of the appellant by pointing out that, amongst the factors that had influenced the Court of Appeal to find as it did, were that Mr. Campbell had been uncooperative throughout the revenue investigation and had displayed no remorse. In contrast, the appellant in the present case had been entirely co-operative and it had been accepted that she was genuinely remorseful. Moreover, there had been no offer of restitution by Mr. Campbell. In the present case, although the offer was not accepted, the appellant had offered to sell her family home in order to provide some level of restitution.
27. The sentencing judge rejected the Campbell case as being of potential relevance or persuasive influence on the basis that it was distinguishable because the appellant's breach of trust had been greater, in her perception, than Mr. Campbell's. It was submitted to us that the sentencing judge failed to interpret the Campbell case correctly. In particular, it was submitted that the sentencing judge incorrectly determined that the breach of trust inherent in the appellant's case was a more serious aggravating factor than the breach of fiduciary duty in the Campbell case. Moreover, it was submitted, the mitigation to which the appellant was entitled was significantly greater than that to which the defendant in the Campbell case was entitled.
28. Finally it was submitted that that the sentence imposed was excessive in its totality, and that the sentencing judge ought, by reference to comparable cases, to have suspended a portion of the sentence in the light of the particular circumstances of the appellant and the significant mitigating factors in her case. It was submitted that, in imposing sentences that were unduly harsh and disproportionate, the court below had erred in principle, and that this Court should quash those sentences and sentence the appellant afresh.
Submissions on behalf of the Respondent
29. In seeking to stand over the sentences imposed by the court below, counsel for the respondent has pointed to the extent of the breach of trust involved, the lengthy period of the breach, the sheer number of transactions involved and the extent of the fraud.
30. Counsel for the respondent has submitted that the trial judge did in fact consider and give appropriate weight to both the aggravating and the mitigating circumstances in the case. Counsel acknowledged that the law requires that a sentencing court must conduct a systematic analysis of the facts, and assess the gravity of the offending conduct with a view to arriving at a sentence which is both fair and proportionate in the circumstances of the case. It was submitted that the sentencing judge did that.
31. In so far as the Campbell case was concerned, counsel for the respondent contended that the sentencing judge had distinguished that case on multiple bases, including the amount of monies involved and the fact that, due to her position, the appellant had more than likely met the injured parties every day over a period of fourteen years, during which time she was defrauding them.
32. Counsel for the respondent has in turn referred us to the case of The People (Director of Public Prosecutions) v. Reilly [2016] IECA 43, as a decision in which the offending conduct involved mirrors to some extent at least that in the present case. The appellant, who had a gambling addiction, had pleaded guilty to eighty counts of theft. The amount involved was €832,142. The appellant committed the offences while employed as a tied agent with Canada Life and had engaged in fraudulent activity over an extended period of time, from 2002 to 2011. The modus operandi of the thefts was that the appellant would in the first instance encourage and advise a client to withdraw money from an existing savings or investment policy. Then, once the client was in receipt of a cheque for that money, he would persuade the client that it would make good financial sense to re-invest it in a Canada Life/EBS fund on the basis that this would yield a higher return than the original savings or investment policy. He would then get the client to hand the monies back to him for re-investment. Sometimes the client would simply endorse the back of the cheque that he or she had received and return it to the appellant. On other occasions, he would get the client to issue a cheque or bank draft payable to him. On yet other occasions, he was given cash. The appellant would then lodge the monies into his own account. The client, however, was invariably informed that their money had been invested in the Canada Life/EBS fund but no such investment was in fact made. Evidence was given that false documentation was produced to clients to reassure them that their monies had been invested as promised and that some of the clients were vulnerable people.
33. The appellant was sentenced to a single term of four years' and six months' imprisonment on count number one, with counts nos. two to eighty inclusive being taken into consideration. He appealed against the severity of his sentence.
34. The appeal in the Reilly case was advanced primarily on the basis that the sentencing judge gave insufficient weight to the mitigating factors in the case. Defence counsel had advanced five factors in respect of which he had urged that significant credit should be given in mitigation, including (i) the appellant's extensive cooperation, (ii) his early pleas of guilt, (iii) the personal circumstances of the appellant with particular emphasis on his age and his previous good character, (iv) the level of remorse and (v) openness to, and steps towards, rehabilitation. The Court noted that it had been a difficult case to analyse because, contrary to established best practice, the sentencing judge had indicated neither his starting point based on his assessment of the seriousness of the offending behaviour, nor the amount of discount that he was giving for mitigating factors in the case. This presented a real and manifest problem in circumstances where the appellant was contending that insufficient weight was given to the mitigating factors in the case. The appeal was nevertheless dismissed, this Court concluding (at. para 20) that:
"The final sentence does not appear to us to represent a deviation from what might reasonably have been expected in a case such as this. The sentence imposed was within the sentencing judge's reasonable margin of appreciation and we find no error of principle."
35. We were also very properly referred by counsel for the respondent to The People (Director of Public Prosecutions) v. Moran [2016] IECA 215, in which the appellant had falsified company records and diverted company funds amounting to €283,740 to a Pay Pal account, and ultimately to his own personal Permanent TSB account. The total loss to his employer, Deutsche Bank, was €283,000. He pleaded guilty to numerous counts of theft and deception and was sentenced on the 31st of July 2015, at Dublin Circuit Criminal Court to a number of terms of three years' imprisonment, on various counts, to be served concurrently. In his sentencing judgment, the learned judge emphasised the appellant's position of authority within Deutsche Bank and noted that the appellant had breached that trust in stealing a significant sum of money from his employer.
36. Similar to the case now under consideration, the appellant in the Moran case had made admissions to the Gardaí, was fully co-operative with them in their investigation and had no previous convictions.
37. The grounds of appeal in the Moran case included, amongst others, the complaint that the sentencing judge had placed undue weight on what he identified as the aggravating factors, in particular the breach of trust element, and that he failed to accord sufficient weight to the mitigating factors put forward on behalf of the appellant. At the hearing of the appeal, the appellant's counsel had focussed in particular on the failure to suspend a portion of the sentence imposed.
38. The Court of Appeal noted that the suspension of a portion of the sentence did not appear to have been considered by the sentencing judge. It concluded:
"14. The court is satisfied that there was an error of principle to this limited extent. While the three year headline sentences were within the range of sentences available to the learned sentencing judge for these offences, and were therefore appropriate, some portion of those sentences ought to have been suspended for the reasons already indicated, particularly, the plea of guilty and the fact that the appellant was a first time offender and unlikely to re-offend, in the interests of incentivising rehabilitation."
39. In light of this, the Court of Appeal re-sentenced the appellant in the Moran case to a term of three years' imprisonment but suspended the last ten months thereof for two years on the usual terms.
40. We have also been referred to, and are asked to take account of, the commentary in Mr Thomas O'Malley's well regarded work on "Sentencing Law and Practice" , 3rd ed, at para 2-13, where, under the heading of "General Deterrence", he notes the empirical assumption that punishment, if sufficiently severe, will dissuade others from committing similar crimes. It will, in effect enhance crime prevention. Counsel for the respondent has submitted that the fundamental breach of trust evidenced in the present case called for a generally deterrent sentence, and that the sentence handed down by the court below was not unduly harsh given the particular circumstances.
Discussion, Analysis and Decision
Relevant Comparators
41. We have found the cases of Campbell , Reilly and Moran , respectively, on which the parties have placed specific reliance, to be of assistance. However, as might be expected, the present case is not precisely on all fours with any of them.
42. There were other fraud, theft and misappropriation cases contained amongst the authorities provided to us by both sides, and others the Court is aware of itself. These include The People (Director of Public Prosecutions) v. Perry [2009] IECCA 161; The People (Director of Public Prosecutions) v. Murray [2012] IECCA 60 ; The People (Director of Public Prosecutions) v. Hughes [2012] IECCA 85; The People (Director of Public Prosecutions) v. Begley [2013] 2 IR 188 ; The People (Director of Public Prosecutions) v. (Thomas) Byrne Dublin Circuit Criminal Court, 2nd December 2013; The People (Director of Public Prosecutions) v. Hawkins [2015] IECCA 36; [2015] IECCA 38; The People (Director of Public Prosecutions) v. (Breifne) O'Brien [2015] IECA 304; The People (Director of Public Prosecutions) v. Maguire [2015] IECA 350; The People (Director of Public Prosecutions) v. Walsh [2016] IECA 74 ; The People (Director of Public Prosecutions) v. Zaffer [2016] IECA 321; The People (Director of Public Prosecutions) v. Durcan [2017] IECA 3; The People (Director of Public Prosecutions) v. Lynch [2018] IECA 1; The People (Director of Public Prosecutions) v. Hehir [2018] IECA 244, and ; The People (Director of Public Prosecutions) v. Lawlor [2018] IECA 243. Again, while none of these is precisely on all fours with the present case, we have found each of them helpful to a greater or lesser extent, and it is therefore appropriate to review them.
43. The case of The People (Director of Public Prosecutions) v. Perry involved the failure by a small builder, a married man supporting three small children, with no previous convictions, and being otherwise of good character, to account for certain VAT payments received over a period of nine years. The tax not accounted for was in the region of half a million euros. The defendant's liability to the Revenue when interest and penalties was added was roughly that of the above figure. The defendant was prosecuted for relevant offences and pleaded guilty and received a custodial sentence. He appealed against his sentence. The judgment of the Court of Criminal Appeal unfortunately neither identifies what precisely the charges were, nor the length of the custodial sentence(s) imposed. (However, the case is referred to in The People (Director of Public Prosecutions) v Hughes [2012] IECCA 85, where Fennelly J states that "a sentence of 20 months" was imposed by the trial judge at first instance.) Be that as it may, what is clear from the judgment is that that court saw fit to intervene because the sentencing judge at first instance was considered to have erred in principle by prioritising punishment and censure in the interests of general deterrence, or "the demonstration factor" as it was referred to in the judgment, to the exclusion of all other relevant factors including the appellant's personal circumstances. The judgment of the court (at p. 5) records:
"The learned trial judge next accepted the likelihood that the appellant will not re-offend in the future and in imposing the sentence he said:
‘I must bluntly state that what 1 am going to do is of a punitive nature. There is no need to rehabilitate Mr. Perry because he is rehabilitated, and he is in my view not at risk of re-offending'.
In other words, he excluded from his consideration any ground for a custodial sentence other than the purely punitive. This, in the view of the court, is not in accordance with the accepted jurisprudence, that one can entirely exclude the personal history of the accused; it is certainly not in accordance with the established jurisprudence for the treatment of first offenders of good character."
44. Hardiman J, giving judgment for the court, went on to say (at p. 7): "In all the circumstances we are of the view that the learned trial judge erred in principle by wholly excluding the personal factors from what he seemed to think necessary, … , about the demonstration factor in sentencing. The demonstration factor is not an illegitimate consideration, … , but it is not one which permits the total displacement of the personal factors and there seem to be no other factor in the learned trial judge's view which justified a custodial sentence.."
45. In circumstances where the appellant had been in custody for a significant period by the time his appeal came on, the Court of Criminal Appeal suspended for a period of twelve months the unserved remaining balance of the sentence imposed at first instance.
46. The case of The People (Director of Public Prosecutions) v Murray involved an appellant, a 63 year old former carpenter, who had pleaded guilty to one count of having a false passport and twenty-five sample counts of social welfare fraud. Over a period of years, and while living in Thailand, the appellant had systematically and with planning and premeditation, misappropriated sums amounting in aggregate to marginally less than €249,000, by making diverse false claims for jobseeker's allowance, disability allowance and supplementary welfare allowance, under nine different identities, including those of members of his own family. A sum of just €11,151 was repaid by way of restitution. He received a combination of concurrent and consecutive sentences, amounting in aggregate to twelve-and-a-half years' imprisonment, and he appealed successfully against the severity of his sentence which was found to infringe the totality principle.
47. The case is significant in particular because the judgment contains the following statement of principle (at paras 21 and 22):
"In the case of offences involving the public purse, deterrence plays an important value in the sentencing process. In the context of frauds upon the public revenue, deterrence is an important consideration, in that it is a necessary quid pro quo of social solidarity. It gives an assurance to the hard-pressed bona fide taxpayer that the State will both collect and distribute its revenue fairly and that those who defraud will be sternly dealt with. Some element of severity is necessary to ensure that taxpayers will pay the State what has been deemed by law to be properly due and to assure those who rely on social security payments that public support for the needy will not be undermined by an official culture which either turns a blind eye to those who commit illegal tax evasion on the one hand, or social security fraud on the other,or which is indifferent to these consequences.
We therefore suggest for the future guidance of sentencing courts that significant and systematic frauds directed upon the public revenue - whether illegal tax evasion on the one hand or social security fraud on the other - should generally meet with an immediate and appreciable custodial sentence, although naturally the sentence to be imposed in any given case must have appropriate regard to the individual circumstances of each accused."
48. It bears pointing out that in The People (Director of Public Prosecutions) v Campbell case, referred to earlier in this judgment, we said concerning the Murray case: "16. It was common case that the jurisprudence in respect of the sentencing principles applicable to revenue and social welfare frauds area has undergone some refinement since the Murray case. In particular, it has been urged upon this Court that while the statement of general principle enunciated in Murray, and alluded to in paragraph 15 above, is valid and correct in so far as it goes, the manner in which it is to be applied in any individual case has been nuanced and elaborated upon in a number of subsequent judgments of the Court of Criminal Appeal.
49. We went on to refer to the judgments in the cases of The People (Director of Public Prosecutions) v Hughes and The People (Director of Public Prosecutions) v Begley , as exemplifying that.
50. Returning momentarily to the Murray case, the Court of Criminal Appeal substituted an effective sentence of nine years' imprisonment, with the final year thereof suspended, for the sentences that had been imposed in the court below.
51. In the case of The People (Director of Public Prosecutions) v Hughes , a sentence of four years imposed by the trial judge for six offences involving failure to make returns in respect of VAT, or to pay VAT, was reduced by the Court of Criminal Appeal to two years. The loss to the Revenue in that case was €226,718 before interest and penalties, and without taking account of restitution. However, substantial restitution in the sum of €252,000 had been made by the date of sentencing, and the appellant had committed in a settlement with the Revenue to repaying further sums over time. Total eventual payments including tax, penalties and interests were expected to exceed €400,000.
52. The appellant was a 56 year old man, living in France at the date of sentencing, who was in a long term relationship with a partner with whom he had two children. He had poor educational attainments due to dyslexia. However, he had a good employment, and later self employment, record, had no previous convictions and was otherwise of good character.
53. The Court of Criminal appeal dealt with the appeal as follows:
"67. In summary, the court finds that the learned judge committed an error in one respect. He discounted very largely or entirely the large settlements made by the appellant with the Revenue and their destructive effects on his finances, his life, his capacity to earn and his family. The Court has summarised these extensively in the earlier part of this judgment.
68. The court considers that the sentences of four years were excessive. However, having regard to the seriousness and extent of the evasion of VAT and the dishonest way in which it was organised, it believes, however, that a sentence of imprisonment was warranted. Taking account of his very extensive settlements and cooperation with the Revenue, the destructive effects on his life, his plea of guilty, his rehabilitation and the other mitigating factors, it will reduce the sentences two years on each count to run concurrently."
54. In the case of The People (Director of Public Prosecutions) v Begley , the appellant had pleaded guilty to one count of attempted fraudulent evasion of customs duty and three counts of fraudulent evasion of customs duty, arising out of the importation of garlic into the State contrary to s. 186 of the Customs Consolidation Act 1876, as amended. The sentencing court imposed a sentence of five years for one count of fraudulent evasion, the maximum provided for by statute, and one year on another count of fraudulent evasion, to run consecutively to the first sentence.
55. On appeal to the Court of Criminal Appeal against the severity of this sentence, the appellant submitted that the sentencing court failed to properly take into consideration the mitigating factors in the case, that the sentencing court erred in relying upon the principles of punishment and deterrence to the exclusion of the facts surrounding the offence and the appellant's personal circumstances and that the sentence imposed was disproportionate in all the circumstances.
56. The Court of Criminal Appeal reduced the sentence to one of two years holding, inter alia , and following The People (Director of Public Prosecutions) v. R.McC [2008] 2 IR 92, that the correct approach to sentencing required a systematic analysis of the facts of the case and an assessment of the gravity of the offence, the point on the spectrum at which the particular offence or offences may lie, the circumstances and character of the offender and the mitigating factors to be taken into account. The aim of this approach was to arrive at a sentence that was both fair and proportionate. Further, it was held that every step in the sentencing process did not have to be particularised in some formulistic or rigid way by the trial judge, but rather that the basis for the sentence imposed should be both apparent and consistent with the principles of sentencing. Finally, the Court in Begley held that there was no parallel set of sentencing rules relative to tax fraud cases, and in all cases the ultimate conclusion on sentencing should be directed by general principles regarding sentencing.
57. One of the grounds on which the Court of Criminal Appeal saw fit to intervene was the failure to give adequate credit for mitigation. The Court noted:
"[27] The following matters were identified in the submissions, as being referable to the appellant or his circumstances and were, as part of their elaboration, spoken at different times and in a variety of ways:-
• that of his good character;
• that he was a good and generous man whose deeds include helping the homeless;
• that he is an asset to his family and an asset to the country;
• that he was instrumental in overseeing a major development of the family business;
• the absence of any previous convictions;
• the unlikelihood of any reoffending with full rehabilitation having been achieved;
• that the idea in the first instance for the evasion, had originated with the Chinese suppliers; and
• that of his full cooperation with the Revenue when the offences were uncovered.
[28] The sentencing judge made no reference to the following factors though agitated by counsel on behalf of the appellant:-
• restitution, achieved with the assistance of a significant loan made by the company to the appellant for this purpose;
• his good standing with the Revenue apart from this offence;
• his immediate guilty plea in the District Court and his later plea in the Circuit Criminal Court;
• his remorse demonstrated by the early plea and restitution; and
• the consequential disqualification of five years which followed conviction."
58. In re-sentencing the appellant, the Court of Criminal Appeal went on to say: "[87] Regarding mitigation, it is not necessary to repeat those factors of relevance as the same are fully outlined at paras. 27 and 28, supra . It is sufficient to recall those that merit the most favourable consideration being the immediate and extensive cooperation offered to the Revenue Commissioners: the identification and supply of documentation that otherwise may never have surfaced and that for all practical purposes constituted the book of evidence; the restitution programme entered into and in accordance with its terms performed several months prior to the institution of criminal proceedings; the admission of guilt, followed by what the court is satisfied was a plea at the earliest reasonable time, thereby avoiding a prosecution which could have had some technical issues; the expressions of remorse tangibly demonstrated; the absence of previous convictions and his personal circumstances. It is also of note that the value of the goods on the indictment to which he pleaded guilty was about €86,000, whilst the value of the goods in the entire indictment was about €300,000. In all, the revenue lost in terms of duty was less than the figure last mentioned. These and the other matters above mentioned must therefore be reflected in the sentence to be imposed.
[88] By reason of these circumstances and in order to reflect the gravity of the offences in question and the circumstances of their commission, but crediting the appellant with due and apposite weight for the very significant mitigating features, this court is of the view that, the appropriate sentence should be one of two years."
59. It is not necessary to say much about the case of The People (Director of Public Prosecutions) v. (Thomas) Byrne , other than to note it. It is a decision of the Circuit Court at first instance that was not appealed. The circumstances were, however, truly exceptional in terms of the sheer size and extent of the frauds perpetrated and therefore it does not bear any meaningful comparison to the case we are concerned with today. In that case the defendant, a former solicitor, pleaded guilty to a series of theft, deception and forgery offences involving the misappropriation of circa €52 million (€52,000,000) primarily obtained from various financial institutions through fraud, but also involving the defrauding of several clients who were caused to lose their houses and suffer serious financial losses. He received an effective term of twelve years' imprisonment.
60. The case of The People (Director of Public Prosecutions) v. Hawkins concerned a woman who stole approximately €2.8 million from her employer who was a member of the band "U2". She received a sentence of 7 years imprisonment at first instance, and the Court of Criminal Appeal upheld that sentence. From 1992 the appellant worked for the U2 band member Adam Clayton as a housekeeper over a period of about eight years. Because of the satisfactory nature of her temperament and because of her diligence, she became indispensable to him. Her duties changed from about the year 2000 to include taking on the role of his personal assistant. She was paid approximately €4000 per month. She was given signing rights on cheque books in respect of two of his bank accounts and this was specifically for the purpose of discharging his outgoings. These included flights, household expenses for his home in south Dublin and other sundry items that would arise from time to time. Nothing in her duties enabled her to pay any form of bonus to herself, either in cash terms by way of a purchase using Adam Clayton's bank accounts. Over a period of two calendar years, however, the appellant abused the trust that had been placed in her and stole 181 cheques the property of her employer to a value of €2.8 million approximately. These cheques were transferred into her own accounts. The evidence was that the money was spent on an extravagant lifestyle including, inter alia, the purchase of a New York apartment, the purchase of a car, the costs of associated with owning, maintaining and training a large number of race horses, foreign travel, very substantial spending in department stores, restaurants and hotels, and the discharge of substantial personal credit card bills. The defendant, who had fought the trial, was convicted of thirty-eight separate charges of s.4 theft and the sentencing judge ranked the gravity of the case as being at the higher end of the scale. Having regard to the aggravating factors he identified, namely what he described as "the vast sum involved", the breach of trust, and greed on the part of the defendant, he determined the appropriate headline sentence to be the maximum available, namely ten years' imprisonment. He then discounted from that by three years to reflect mitigation, identifying in that regard the defendant's absence of previous convictions and previous good character, the public opprobrium that she had suffered and would continue to suffer, and the intention to make partial restitution from the sale of the apartment in New York. He further noted "a certain change of attitude", which we interpret as being a degree of remorse. Sentence was imposed on just one count with the others being taken into consideration.
61. The case of The People (Director of Public Prosecutions) v. (Breifne) O'Brien involved an accused who pleaded guilty to seven counts of deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and seven counts of theft contrary to s. 4 of the Criminal Justice Act (Theft and Fraud Offences) Act 2001. These offences represented sample counts on a 45-count indictment, all of which related to offences of deception and theft respectively, and the evidence relating to same was given on a full facts basis. The appellant was sentenced to three and a half years imprisonment on each of the deception counts and to seven years imprisonment on each of the theft counts. The sentences were ordered to run concurrently. Although the sentences were appealed, they were upheld by the Court of Appeal.
62. The circumstances were that the appellant operated what was described as a ‘Ponzi' or ‘Pyramid' scheme, introducing the injured parties to a variety of supposed investment opportunities. He persuaded each of them to transfer money into an account controlled by him, ostensibly for the purpose of being able to demonstrate to alleged third parties that he had sufficient funds to enable him to take advantage of a specific business opportunity. The injured parties were told that monies so transferred by them would remain on deposit for their benefit for a specified period of time and would not leave the account in which they had been lodged. In addition to the return of the principal sums, the profits generated by taking advantage of the alleged opportunities, as well as any interest that accrued in respect of money held on deposit, would be shared with those who transferred the sums in question in proportion to the amount of money advanced. None of these transactions were genuine. The monies transferred into the appellant's control were neither kept on deposit nor used for the agreed purpose or purposes, but were diverted by the appellant towards a variety of ends, including the satisfaction of debts as well as personal expenditure in respect of himself and his family.
63. There were five victims, and the first was defrauded of €3,065,350, the second of €500,000, the third of €4.4 million, the fourth of €685,000 and the fifth of €450,000. No restitution was made.
64. The court heard that at the time of sentence, the appellant was 51 years old. He was a university graduate in Economics and Social Studies from Trinity College, Dublin. Following graduation, he worked for a period of time in a sales and marketing company before establishing his own career in business. He was involved in a restaurant and several launderettes and a taxi company in Dublin. He was also involved in a number of property deals during the 1980s and 1990s. He had disposed of most of these business interests by 2005, and thereafter, he became heavily involved in investing. A number of these investments were successful. After his crimes came to light, his wife had divorced him, and at the time of sentence he was in receipt of social welfare, receiving €188 per week in respect of Jobseeker's Allowance. A psychological report described his motivation as being akin to gambling, but did not suggest any addiction apart from a desire to impress others. The appellant had no previous convictions.
65. The sentencing judge in assessing the gravity of the case had regard to the available sentencing ranges, being up to five years' imprisonment in the case of the deception offences charged and up to ten years' imprisonment in the case of the theft offences charged. She identified that the aggravating factors included "the serious nature of the charge; the amount of monies involved; the fact that the offending occurred over a period of time; the number of transactions that were involved; the breach of trust and the consequences of these offences for the injured parties." She did not, however, nominate a headline sentence.
66. The sentencing judge took into account as mitigation "the plea of guilty; the value of the plea of guilty to the prosecution; his expression of remorse; he has no previous convictions; the effect that this conviction will have on his ability to earn a livelihood in the future; the adverse publicity given to him as a consequence of this conviction; his previous good character; the fact that he volunteered information in 2008 and that details of same were given to the court and the efforts he has made to make good the losses to the injured parties and the fact that he has signed any documentation when he was asked to do so."
67. The sentences imposed were sentences of three and a half years' imprisonment on each of the deception charges and seven years' imprisonment on each of the theft charges, all sentences to run concurrently.
68. The case of The People (Director of Public Prosecutions) v. Maguire involved an appeal against a sentence of eighteen months' imprisonment imposed on the appellant by Dublin Circuit Criminal Court following her conviction by a jury on counts of conspiracy to defraud the Revenue, and also conspiracy to commit an offence contrary to s. 243(1) of the Companies Act 1990, by destroying, mutilating or falsifying books and records relating to the property of the Anglo-Irish Bank. As the judgment of this Court, delivered by Birmingham J (as he then was), explains there was in substance really one act of wrongdoing which involved a conspiracy to conceal a number of bank accounts connected in one way or another to a senior figure within the bank from the Revenue Commissioners. Birmingham J (ibid) went on to say:
"10. The exclusion from the documentation that was being prepared of the accounts in question required action on the part of the bank's IT department. The evidence is that it was Ms. Maguire who told the IT professionals what they were to do. It was accepted that she was not doing this on her own initiative, indeed her status in the bank was such that she would not have had authority acting on her own to issue instructions to the IT department, but rather that she was passing on the messages and instructions of persons senior to her, as it was put at trial, delivering "messages from upstairs".
11. In terms of the background and personal circumstances of Ms. Maguire she is 62 year so age and was an assistant manager in the Treasury Department of the bank. It appears that in her case, that as assistant manager she did not have anyone reporting to her as such. She was by some considerable distance the most junior of the three co-defendants, the others being the company secretary and the chief operating manager. Ms. Maguire is the mother of an adult child who she reared on her own, she separated from her husband when the child was very young and thereafter was the breadwinner in her small family. She left the bank in 2005 to look after her elderly mother and at the time of the sentence hearing was described as being unemployed.
12. There was evidence before the sentencing court that Ms. Maguire was very heavily involved in Good Counsel GAA Club in Drimnagh to the extent that she was a volunteer of the year in Dublin Camogie in 2013."
69. The Court of Appeal allowed the appeal against the severity of Ms. Maguire's sentence, and substituted sentences of twelve months' imprisonment for the eighteen month sentences originally imposed, on the following basis: "17. In a situation where the case had been fully contested it is understandable that the judge felt that he had to consider a custodial sentence. It is not the case that Ms. Maguire was to be punished for pleading not guilty, it was her right to do so. It does mean though that mitigation that would otherwise have been available to her was forfeited.
18. In case such as this one where individuals who occupy a position of some prominence in the commercial life of the State or in public life are charged with offences and are prepared to admit wrongdoing, that would be a matter of very considerable significance and will be treated accordingly, by a sentencing court. In this case had there been a plea of guilty, it may be that custody for Ms. Maguire could have been avoided however, there was not.
19. If the judge felt that custody was inevitable and could not in fact have been avoided, it was appropriate then that the judge would remind himself that he was being called on to sentence someone without previous convictions and not just someone without previous convictions, but someone of positively good character, who had made a real contribution to society by her role as a volunteer and as a carer, stepping away from her career to take on the role of caring for her mother. In those circumstances the focus should have been on identifying the minimum period that could be specified which would meet the situation.
20. In the case of DPP v. Doherty, the Court of Criminal Appeal, the predecessor of this Court was dealing with a garda who had been convicted of an offence of corruption. In passing a sentence following a successful undue leniency application, the Court, (per Hardiman J.) the judgment commented as follows:-
‘We also bear in mind the factors which were recited on several occasions yesterday and acknowledge in the case of DPP v. Egan that is to say that in dealing with a person without previous convictions and indeed of positive previous good character, if the court considers as we do, that a custodial sentence is required in the public interest, such a sentence need not be unduly prolonged because it is the fact of the sentence rather than its duration which is the principle effect.'
21. In the earlier Egan case there referred to, the Court of Criminal Appeal had quoted with approval remarks by Lawton L.J. in the English case of R. v. Sergeant [1975] 60 Crim.App.R. 74 where he had commented:-
‘For men of good character the very fact that prison gates have closed is the main punishment. It does not necessarily follow that they should remain closed for a long time.'
22. In the court's view the judge in the Circuit Court erred in two respects. Firstly in selecting a sentence of eighteen months, a sentence which was more severe than necessary and then, having selected that sentence, failing to consider suspending any part of it."
70. The case of The People (Director of Public Prosecutions) v. Zaffer involved an undue leniency appeal in the case of a respondent who had pleaded guilty to ten counts of theft and fraud type offences and had received wholly suspended concurrent sentences of two-and-a-half year's imprisonment. The offences were committed during the period 2007 - 2012 while the respondent was employed as a senior insurance claims official for the Irish Public Bodies Insurance Company. The offences involved the forging of insurance claims by adding an additional claimant to each of seventeen insurance policy claims paid by the Irish Public Bodies. The additional claimant in each case was always one of five persons, all known to the respondent. Cheques then issued in the names of the five persons, and these cheques were then lodged into a number of bank accounts. The total amount of the fraud was €221,600.
71. The Court of Appeal referred to certain remarks of the sentencing judge, culminating in his decision to impose a wholly suspended sentence:
"7. The learned sentencing judge went on to note the mitigating factors including the plea of guilty, and the fact that a complex trial had been avoided. He remarked on the fact that the respondent had no previous convictions and the fact that the respondent had a drug addiction problem. He asked rhetorically, was there any point imprisoning her? He noted that:-
‘She has lost her job. While that's not of itself a feature of mitigation, it is definitely a feature or a consequence of what she did, and it is obvious now that she has no reliable source of income. I am told she is no longer employed. She has very good educational qualifications and hopefully she will be able to get employment in the future. But she presents as somebody who needs to get to grips with the issues which are raised in the report, and if she does not get to grips with them, is a candidate for possibly relapsing at some stage in the future. She has indicated and expressed a willingness to attend addiction treatment in order to address the propensity and the detail in the report towards addiction and curtail any possibility of reverting to substance abuse.'"
72. This Court found the sentence to have been unduly lenient, stating: "15. In this case, the level of offending is very serious, given that it involved a sum of well over €200,000, and that it was a pre-meditated, well planned and carefully orchestrated fraud undertaken over a fairly prolonged period. There are obvious similarities between this case and the facts in Walsh. Even allowing, to the greatest possible extent, for the appellant's strong mitigating factors, including her guilty plea and previous good record and her own difficult personal circumstances, the imposition of a wholly suspended prison sentence is not justified. Serious pre meditated fraud will almost always merit a custodial sentence. The fact that the victim of the fraud is a large corporation rather than an individual may justify a more lenient sentence than would otherwise be the case, but, normally, only the existence of exceptional circumstances should result in an entirely non custodial sentence where there are hundreds of thousands of euro involved. The Court is satisfied that the sentence imposed by the learned sentencing judge was not only lenient but unduly lenient."
73. At the re-sentencing stage, we stated that the "headline sentences of two years and six months are the appropriate sentences in this case and are, in general terms, consistent with sentences imposed in broadly similar cases in recent years." However, there were strong mitigating factors in the appellant's case and on that account the appellant was re-sentenced to two years and six months with all but the final eight months of each suspended for a period of three years.
74. The case of The People (Director of Public Prosecutions) v. Walsh [2016] IECA 74, referred to in the Zaffer judgment, had involved an appellant who had pleaded guilty to 75 counts of theft. He had signed pleas of guilty in the District Court and received a sentence of two years and six months imprisonment on one count, with the remaining 74 counts being taken into consideration. He appealed against the severity of his sentence.
75. The circumstances were that the appellant was working as a self employed agent selling life insurance policies for Canada Life. He fabricated new policies in order to obtain commission from the company over a period of time. In order to conceal the false nature of the new policies, the appellant set up direct debit payments from the accounts of genuine existing policy holders. In those instances where the genuine existing policy holders queried the payment being taken from their accounts, such payments were refunded to them from the appellant's own resources. The approximate loss to Canada Life was €215,000. None of the customers in question ultimately lost their money.
76. The appellant's explanation for his offending conduct related to personal financial difficulty experienced by him in the construction of a family home for himself and his then partner. When the fraud was initially discovered by Canada Life, the appellant proposed to repay the money, but was unable to do so. His relationship with his then partner collapsed as a result of the fraud, and its attendant publicity.
77. This Court found the sentence imposed to have been too severe, in the following circumstances:
"14. The Court has considered its very recent decision in DPP v. Martin Reilly, delivered on 19th February 2016. That case also concerned serious fraudulent activity by a tied agent of Canada Life. The accused in that case received a sentence of four and a half years, and this was upheld by this court. The facts in both cases are however quite different in many important respects. In Reilly the loss involved was close to €1m. and the fraudulent activity was undertaken over a number of years in order to feed a serious gambling addiction. The targets of the fraudulent activity were eighteen individuals, including one to the extent of €400,000. In reality, Mr. Reilly was running a sort of ponzi scheme.
15. The facts in this case pointed to a less serious fraud. The amount involved was approximately €200,000, the fraud was perpetrated over a relatively short period of time and was not primarily aimed at defrauding individuals. There is also an additional factor in this case which the court believes deserves mention. The appellant's relationship with his then partner broke up following his exposure in relation to his involvement in this matter. He has suffered, and will suffer, enormous shame because he resides in a rural community. Also, as a young man, his employment prospects have been greatly undermined.
16. It is also apparently the case that Canada Life may have been prepared to overlook referring the matter to the gardaí (and with all the unfortunate consequences for the appellant which would then follow and which did follow when that was in fact done) if he had repaid almost €200,000 to them. He was unable to repay the money, and it is not suggested that he ever had the ability to do so."
…
"18. It is the court's view that there were strong mitigating factors in the case in addition to those already referred to, including the appellant's lack of any previous convictions and his very low risk of re-offending, and which were recognised as being present by the learned trial judge. It is not unreasonable to consider this offence as being a one off, and out of character for the appellant. The court is concerned that the learned sentencing judge did not attach sufficient weight to these factors when taking together and to this extent erred in principle."
78. The Court of Appeal suspended the final ten months of the two years and six months sentence, being one third of that sentence, for a period of two years.
79. In the case of The People (Director of Public Prosecutions) v. Durcan , this Court was concerned with a solicitor in sole practice who had misappropriated client funds in the sum of €250,000 approximately. The circumstances in which she had done this were that she had made a number of property investments which had gone wrong resulting in the accrual of personal debts of €6.5 million. In a situation of being under financial pressure, she had yielded to the temptation to have recourse to the funds in her client account. The deficit on the client account was disclosed by Ms. Durcan to the Law Society when that body's accountants were about to commence a routine financial audit of her practice. The matter was reported to the Gardaí, and Ms. Durcan was later charged with, and pleaded guilty to, a single count of theft. She was sentenced to twelve months' imprisonment.
80. The evidence before the court below had been that the appellant had been entirely co-operative. The appellant also made full restitution. The judgment also recorded that:
81. This Court allowed the appeal on the following basis: "27. In the Court's view even on the basis that there was going to be a custodial sentence, the case could have been dealt with by a sentence somewhat less than twelve months. To the extent that that did not happen, there was an error."
82. In re-sentencing the appellant we had the benefit of a psychologist's report, quoted by Birmingham J (as he then was) in extenso in his judgment, that emphasised the difficulties being experienced by the appellant in maintaining contact with her husband and children. We said (at paras 27-28): "This Court is very struck by the information put before it about the difficulties the appellant faces maintaining contact with her husband and in particular with her children. In fairness to the trial judge, this was not an issue that was explored in detail at the sentence hearing, perhaps because the emphasis was understandably on the attempt to avoid custody. However, in the view of the Court it was always an issue of some significance, and at this stage it is clear that it is an aspect of some considerable significance indeed.
In re-sentencing, the Court will not depart from the view of the Circuit Court that this was a case for a custodial sentence, but the Court, conscious of how difficult a prison sentence must be for a mother of a large young family required to serve her sentence away from her husband and children, will reduce the sentence from one of twelve months to six months."
83. The case of The People (Director of Public Prosecutions) v. Lynch involved an appeal against a sentence of eighteen months' imprisonment in respect of five counts of theft and three counts of money laundering. The appellant was a director of a company called AGL Logistics. This was a company involved in the transport business, based in rural Kildare. That company had a relationship with a financial services company called Billy Financial Services and that relationship saw the financial services company paying 80 per cent of invoices that were issued by AGL Logistics by way of a loan or an advance. AGL Logistics was a struggling company and, with a view to keeping it afloat, Ms. Lynch issued 93 false invoices and, on foot of those false invoices, payments were made by Billy Financial Services. They ended up at a loss of €460,662.
84. The circumstances of the case were unusual as is apparent from the following paragraphs from the judgment of Birmingham J (as he then was):
"4. By way of further background, it should be explained that the circumstances in which the appellant effectively found herself in charge of the company, and therefore in a position to do what she did, were unusual. In June 2010 the appellant gave birth to her son by Caesarean section. Two days later, her husband was diagnosed with a rare form of mouth cancer. He became seriously depressed and he withdrew from the running of the company - he had previously been the mainstay of the company having, it seems, inherited it from his father. Some ten days after giving birth, the appellant took over the entire running of the company. It was accepted during the course of the sentence hearing by the investigating Gardaí that she was ill-equipped for this task and that she was really quite out of her depth. The company struggled to survive. The appellant invested a sum of €100,000, her own money, with a view to keeping the company in business and borrowed a further sum of €100,000 from her father for this purpose before resorting to the criminal activity which led to the charges before the Court.
5. In terms of her background and circumstances, she was born on 6th June, 1984 and she was 33 years of age therefore at the time of the sentence hearing. At the time of the offending which occurred over a period of approximately six months between May and October, 2011, she was 27 years of age. She is the mother of two children, two sons, aged three and seven. Because of her husband's difficulties she is, and is likely to remain, the main breadwinner in the family. The family financial situation is a very difficult one, her husband is now on a back-to-work scheme, they have substantial debts and the family home is due to be repossessed in April. The plea of mitigation in the Circuit Court stressed the co-operation that was forthcoming, the appellant was questioned about what was happening, by a representative of Billy Financial Services and in their words, she "talked them through" what had occurred. When the matter was investigated by Gardaí she made immediate and elaborate admissions to them and then, when the matter came before the Courts, entered a very early plea of guilty. In the period between the matters coming to light, the failure of the company as a consequence and the matter coming to court, the appellant had secured work with her brother-in-law and, although the salary was a relatively modest one, she had, on a weekly basis, put money aside by way of assembling a compensation fund."
85. Defence counsel had pressed for a non-custodial sentence, and in the alternative for one of less than twelve months in circumstances where there was some reason to believe that the appellant would be subjected to a more favourable regime in prison if she received such a sentence. Emphasis was also placed on efforts by the appellant to make some, albeit modest, restitution. However, in sentencing the appellant, the sentencing judge did not engage with the latter issue, nor did he explore the suggestion that a sentence of less than 12 months might be particularly beneficial in this accused's case, and, moreover, although asked to do so by counsel, expressly refused to nominate a headline sentence, and failed to indicate the extent of the mitigation he was prepared to afford. He merely indicated that he was going to impose a sentence of eighteen months with no indication of how that figure was arrived at.
86. The Court of Appeal concluded (at para 13) that it was obliged to intervene because of the sentencing judge's "failure to identify a headline sentence coupled with the fact that there was no mention of the pattern of working and saving compensation, and the failure to address the assertion that if there had to be a custodial sentence that the appellant would be advantaged by a sentence of 12 months or less, and disadvantaged by one of 12 months or more".
87. This Court substituted a sentence of eighteen months' imprisonment with the last six months thereof suspended "given the combination of the really powerful mitigating factors that are present."
88. The penultimate case to be considered in the course of this review is the recent case of The People (Director of Public Prosecutions) v. Hehir . This concerned an undue leniency review in a case where the respondent had been sentenced to a combination of community service and wholly suspended sentences in respect of ten sample counts of theft. The respondent had been an employee of City Bin Company and had been in full control of the company accounts. Between the 20th of April 2016, and the 22nd of September 2016, the respondent transferred money electronically from the company's accounts to his own personal bank account on 71 separate dates. The amount involved was €305,072.64. He explained that he had stolen the money to fuel his gambling addiction with online bookies. Restitution of €29,000 was provided by him with the assistance of a loan from his parents, and he was paying €100 per week on an ongoing basis by direct debit. The appellant was 26 years of age with no previous convictions. He was fully co-operative. At the time of sentencing, he was living with his parents and was in full time employment with a multinational medical devices company in Galway, who retained the respondent despite his previous offending. He was assessed by the Probation and Welfare Service who stated he was at a low risk of future offending. He had engaged in restorative justice work with the Probation Service and had substantial support from friends, family and community. He was heavily involved with the GAA and was described as being of good standing in the community.
89. In imposing the sentence that she did, the sentencing judge stated that the breach of trust involved in the offending was an aggravating factor in the case. Mitigating factors included the following: the fact that the respondent co-operated fully in the investigation; his acceptance of responsibility; his guilty plea at the earliest opportunity; his good character; the fact that compensation had been paid; his attendance at gambling aftercare; the fact that he had been assessed by the probation services as being at low risk of reoffending; his remorse for his actions; his engagement with restorative justice work; his new job and attempts to rebuild his career.
90. The Court of Appeal concluded that the sentence was very lenient indeed, but not unduly lenient. We stated (at para 29) that:
"The question for this Court is whether the sentence was unduly lenient in that it was a substantial departure from what would be regarded as the appropriate sentence. In this regard we consider the judgment of Mahon J. in DPP v. Zaffer, cited above, to be of great assistance. The point of departure for employee fraud is an immediate custodial sentence. Only the existence of exceptional circumstances can justify a departure from that default sentence. We are obliged to allow a substantial margin of discretion to a sentencing judge in this regard. He was the judge who heard the evidence at first hand. Here, in what is a model of its kind, the learned sentencing judge's decision set out carefully, succinctly but comprehensively a list of factors that led him to the conclusion that a custodial sentence was neither necessary nor desirable. He carefully balanced all factors involved and missed nothing in his outline of these. Allowing the learned sentencing judge a substantial margin of discretion in identifying and balancing the special circumstances of the case, it appears to us that there is no basis upon which this court can intervene."
91. Finally, in the case of The People (Director of Public Prosecutions) v. Lawlor , we were again concerned with an undue leniency review. In this instance, the respondent had pleaded guilty to eleven counts of theft arising from social welfare fraud in the years 2005 to 2015 inclusive, and in respect of which the court below had imposed a sentence of three years' imprisonment that was wholly suspended.
92. The circumstances were that the respondent was in receipt of Jobseeker's Allowance, although he was in business until sometime in 2008. He was also receiving the Adult Dependant Allowance in respect of his former wife, despite the fact that he was not living with her during this time, and that she was receiving a separate income. The respondent also claimed the Pre-Retirement Allowance, a benefit which may be available to those aged 55 or over and who have left the work force, despite his being self-employed during some of this period. During this time, the respondent also received rent payments from the Department of Social Protection on behalf of tenants who lived in a property in Ballycullen which he owned. Further investigation showed that the respondent sold and purchased properties during this period. It was calculated that the respondent had fraudulently obtained €167,873.90 from the Department of Social Protection.
93. The respondent was 67 years old at the time of sentencing. He had no previous convictions. He had been self-employed, running a number of businesses including a garage and repairs workshop. The respondent was separated from his former wife and had three grown up children. He was a co-owner of a property in Ballycullen, County Dublin, but had fallen into arrears and repossession proceedings of the property had commenced at the time of conviction. He had been living in a house owned by his sister. Evidence was heard and accepted that the respondent has been a carer to his sisters, one of whom suffers from a serious disability. His other sister, who also has health issues, stated that they relied upon him greatly. The respondent himself had also had periods of ill-health, having suffered from prostate cancer, depression, and hypertension. The respondent had cooperated with the Garda investigation and had entered an early plea of guilty. At the time of sentencing, the respondent provided €11,000 which he had raised to pay to the Department of Social Protection by way of restitution. He had been living on the State pension, reduced by €28.20 per week by way of further repayments to the Department of Social Protection.
94. The focus of the application was not on the headline sentence of four years' imprisonment nominated by the sentencing judge, nor even on the discounting of one year from this to a sentence of three years, but rather it was focussed entirely on the decision to wholly suspend that three year term.
95. The Court of Appeal decided against intervention, ruling:
"34. As with Hehir, also delivered today, had the judge decided that custody could not be avoided completely and so decided to structure the sentence by requiring part to be served but providing for suspension in part, it may well be that there could not have been a successful appeal against severity of sentence. However, as the authorities make clear, that is not determinative of the issue. The question for this Court is whether the sentence for the particular offence involved here was unduly lenient in that it was a substantial departure from what would be regarded as the appropriate sentence. Were there exceptional circumstances present that could justify such a departure from the norm which is custody ? The point of departure for the learned sentencing judge was a custodial sentence and she clearly recognised that. She then explained why she considered there were exceptional circumstances justifying her departure from the norm. They are very clearly based upon the extremely difficult circumstances of the respondent's two sisters. One is partially paralysed and cares very loyally but with great difficulty for her badly disabled older sister. The imprisonment of their brother who cares for them would almost certainly end, at the very least, the older woman's ability to live at home. Allowing as we must a substantial margin of discretion to the learned sentencing judge we can find no basis for intervening in this case."
96. So how exactly has this review of comparators been of assistance? If nothing else, it demonstrates the complexity of sentencing offenders in fraud cases, and emphasises, if emphasis were necessary, that rigorous analysis of the circumstances of an individual case is essential if a just and proportionate sentence is to be delivered. However, their assistance extends beyond that.
97. Comparators are a useful tool in sentencing cases, both at first instance and at appellate level, providing that their limitations are acknowledged and understood. It is trite, and a statement of the obvious, to observe that no two cases are the same and that every case depends on its own facts. Moreover, account must be taken of the ability of judges to exercise legitimate judicial discretion in the imposition of sentences within accepted margins of appreciation. This discretion comes into play at various levels ranging from determining the gravity of the case, to deciding on the extent of mitigation to be afforded, to determining how pursuit of the recognised objectives of sentencing should be balanced in the circumstances of the individual case, to choosing between available penalties and to the structuring of the sentence to best deliver a just and proportionate sentence. Accordingly, any temptation to superficially compare cases, and outcomes, in the hope of discerning a manifestly consistent approach must be resisted as involving a largely meaningless quest. Equally, cases proffered as comparators do not represent binding precedents, at least in terms of assessments of gravity, or the extent of allowances to be afforded in mitigation, or as to outcomes. A judgment in a case offered as a comparator might, of course, have concurrently determined a novel issue of law, and if so could represent a binding precedent for future cases with respect to that issue of law, but not as to factual determinations or outcomes.
98. All of that having been said, comparators can provide evidence of discernible trends in sentencing for different types of offences, and non-binding, but none the less valuable, guidance in terms of how courts in previous cases may have variously approached different aspects of the sentencing exercise, and indications of what weight may have been afforded to different relevant factors.
99. Fraud cases are no different to any other cases of dishonesty. The gravity of the offending conduct depends on the culpability of the offender and the harm done. While the spectrum of penalties available may vary somewhat, depending on the nature of the charge, a maximum penalty of ten years would not be untypical (that being the case for theft, false accounting, and using a false instrument, although in the case of making a gain or causing a loss by deception offences it is five years.) The comparators that we have reviewed indicate that fraud type cases, whether charged as theft or deception, or false accounting, or on some other basis, tend to exhibit certain common features. Very often they are committed by persons with no previous convictions, and who were otherwise of good character. In the great majority of cases, the accused has pleaded guilty, often at a very early stage, and has co-operated with the investigation and will have made admissions. Admissions are always valuable but are acknowledged as being particularly valuable in fraud cases. The risk of re-offending is often assessed as being low, save in the case of persons with an unaddressed gambling or other addiction. Frequently, the amount involved is substantial. The cases we have reviewed have in most instances involved six figure sums, and in some instances seven figure sums. Frequently, the offending has gone on undetected for years so that prosecutions, when they do occur, are presented on the basis of "sample" counts.
100. In relatively few cases has the offending conduct been cynically committed with clear criminal intent, or motivated exclusively by greed. Where offences have been committed with such intent or motivation, the moral culpability is to be regarded as very high indeed. The comparators also indicate that in relatively few cases is the offending conduct based on highly pre-meditated and careful planning. Again, such premeditation and planning, where established, is to be regarded as a seriously aggravating factor.
101. More typically, however, the offending conduct begins opportunistically in circumstances where the offender is under some financial pressure and gives in to temptation. Sometimes it is committed in circumstances where the offender convinces himself or herself that, in taking the money, they are just borrowing it to address a short term need and will pay it back. Where that occurs the intention to pay back may indeed be genuine although it is usually hopelessly unrealistic, sometimes to the point of being delusional. On other occasions, the offending conduct may have begun due to a compulsion that the offender is labouring under, frequently a gambling or drug addiction. In cases of employment fraud, fraud committed in the practice of a profession, and certain other types of fraud, a major aggravating factor will be the breach of trust that was involved. In many tax fraud cases, particularly those involving VAT and other taxes to be collected, or withheld, by the taxpayer on behalf of the Revenue, there will have been a breach of fiduciary duty. Moreover, in all tax frauds and in the case of social welfare frauds, there will have been a disregard of civic responsibility which includes the requirement to show social solidarity.
102. In terms of the harm done, there may be direct and immediate consequences when the victim is an employer or private client or individual. Though harm is still done, the consequences of financial losses may be less directly and immediately felt where the victim is a substantial corporate entity, an institution or the State. In many cases, some level of restitution is ultimately made, but full restitution tends to be uncommon. The cases reviewed indicate that while the sum involved is always a relevant factor in the assessment of gravity, outcomes do not remotely bear a linear relationship to the sums appropriated. Nor should they, having regard to the proportionality requirements.
103. In The People (Director of Public Prosecutions) v Begley , the Court of Criminal Appeal made clear that there was no parallel set of rules relating to tax fraud cases and that sentencing in such cases should be in accordance with general principles of sentencing. We believe that to be true in the case of all frauds, whether they be tax frauds, social welfare frauds, employment frauds or frauds committed in any other context.
104. Every case requires an assessment of the gravity of the offending conduct, regardless of whether sentencing is approached on the semi-structured reasoning basis which we consider to be best practice, or otherwise. There has to be such an assessment because the Constitution requires that the ultimate sentence be proportionate both to the gravity of the offence and the circumstances of the offender, although where an instinctive synthesis is applied, as it was in this case, the process by means of which gravity is assessed may be opaque and there may be no stated headline sentence.
105. So what do the comparators we have reviewed tell us about how the courts have approached the assessment of gravity in other cases sharing many of the features of the case with which we are presently concerned? It has not been possible in every case to ascertain the pre-mitigation or headline sentence figure(s), and where it has not been possible to do so we have adopted the expedient, for the purposes of our exercise, of grossing up the ultimate figure by 33 1/3 % on the basis that any discount for mitigation is unlikely to have been less than 25% in most cases. Moreover, our review is based on post-appeal figures, and not initial pre-mitigation or headline sentence figure(s) unless upheld. As might be expected, the overall result of the review is something of a bell curve with the majority of pre-mitigation sentences in the range from two years' to four years' imprisonment. At the lower end of the curve, we see actual or inferred headline sentences of twenty months or less, typified by cases such as Maguire , Durcan , Lynch and Perry , while at the other extreme one sees the Murray case where there was a sentence of nine years' imprisonment with the final year suspended, and the (Thomas) Byrne case where a sentence of twelve years was imposed.
106. We have already commented that the (Thomas) Byrne case was wholly exceptional in terms of the scale of the fraud and the losses involved and the severe sentence imposed is readily understandable in the circumstances of that case.
107. The Murray case, however, seems to be significantly out of kilter with the general trend, and must therefore be treated with some caution. In the case of Hughes, Fennelly J referring to the Murray case, distinguished it from the case before him on the basis of "the type, scale and deviousness of the extraordinarily elaborate and calculated fraud which that case disclosed". However, it is hard to reconcile the sentence in Murray with the next lowest sentences encountered in our review, namely one of seven years in the Hawkins case (the headline sentence being ten years), and seven years in the (Breifne) O'Brien case (with an inferred headline sentence of not less than nine years and four months). The sums appropriated in both the Hawkins and O'Brien cases were much greater than in Murray ; in both the Hawkins and O'Brien cases the proceeds of the crime had been expended on an extravagant lifestyle which was not particularly true in Murray . There had been a finding of greed in the Hawkins's case, of a desire to impress others in the O'Brien case and of a cynical disregard of civic responsibility and the need to show social solidarity in the Murray case. In the Hawkins case, unlike in Murray's case and O'Brien's case, the trial had been contested, thereby depriving the defendant of a substantial ground of mitigation from which she otherwise would have benefitted.
108. The next lowest sentence below the Murray , Hawkins and O'Brien cases was one of four-and-a-half years' imprisonment in the Reilly case (with a headline sentence of between nine and ten years as inferred by the Court of Appeal - see the judgment of Edwards J at [2016] IECA 43, para 20), which is much more in line with what seems to be the range of sentences typically arrived at in employment frauds, albeit still at the higher end of the bell curve.
109. In no case was the starting point a non-custodial sentence, though in some cases that was the eventual outcome. Our review tells us that for the majority of cases, i.e., those in the hump of the bell, the starting point is typically a custodial sentence of between two and four years. The majority of such cases involve six figure sums, some level of planning or premeditation, alternatively continuation of what began as opportunistic offending over a lengthy period, and significant breaches of trust. Zaffer was one such case, where it will be recalled Mahon J stated that "headline sentences of two years and six months are the appropriate sentences in this case and are, in general terms, consistent with sentences imposed in broadly similar cases in recent years." He further stated that "[s] erious pre-meditated fraud will almost always merit a custodial sentence" and that "normally, only the existence of exceptional circumstances should result in an entirely non custodial sentence where there are hundreds of thousands of euro involved" . His approach reflects the trend evident in the cases we have reviewed.
110. In so far as final outcomes are concerned, there is still a bell curve but it is somewhat flatter. This is only to be expected in circumstances where individual circumstances will vary greatly, and must be taken into account as part of the proportionality requirement. What is striking, however, is that in almost every case there was an early plea of guilty, co-operation, no previous convictions and indeed previous good character. In addition to these common denominators, which were deserving on their own of significant discount in mitigation, there were further individual mitigating circumstances. Accordingly, in almost every case there required to be a significant discount for mitigation such that we see eventual outcomes in the hump of the bell ranging between eighteen months and three years' imprisonment to be actually served. However, a reasonably significant number of cases, typified by Perry , Maguire , Zaffer , and Durcan , resulted in final sentences of less than eighteen months to be actually served. Moreover, exceptional circumstances in Lawlor and Hehir , resulted in wholly suspended sentences.
111. What is also striking from the comparators is that in many cases the court has been significantly influenced in imposing an ultimate sentence which is low, compared to those routinely imposed for other non-fraudulent crimes of dishonesty, by the offender's absence of previous convictions and previous good character. While the policy considerations at issue are not always expressly articulated, it may be inferred that there has been little perceived need for specific deterrence in such cases, and that the view was taken that requirements of general deterrence and censure were capable of being satisfied in most cases by the fact of the imposition of a custodial sentence rather than by the length of it. Such considerations feature in the judgment of Birmingham J (as he then was) on behalf of this Court in the Maguire case, for example, and also in the judgment of the sentencing judge at first instance in Zaffer .
112. Although rehabilitation in the narrow sense of reformation of character, or addressing personal issues such as addiction, so as to break a cycle of criminal recidivism, may not have been required in the majority of these cases, it is also reasonable to infer that many of the judges concerned were anxious to incentivise rehabilitation in the broader sense, by the showing of a degree of leniency, particularly by generous use of the option of partially suspending a sentence, with the objective of getting the offender to resume making a positive contribution to society and his/her community.
113. Turning then to the case at hand, the first thing to be said is that we do not know the process of reasoning by means of which the sentencing judge ended up where she did. She identifies various mitigating factors which she states she took into account, but we simply do not know the extent to which she did so. All we know is that her ultimate sentence was one of four years' imprisonment. This implies that her pre-mitigation sentence must have been higher than that. Moreover, because on any view of it the extent of the available mitigation in this case was substantial, it must be inferred that inevitably her unspoken starting point would have been very significantly higher than four years, and allowing for the possibility that the discount afforded could been of the order of 50%, which would not have been unreasonable in the circumstances of the case, it is therefore possible that the unspoken headline sentence could in the region of eight years.
114. Assuming that to have been the case, the sentence imposed in this case falls outside the range of sentences applied in all of the cases that we have reviewed, with the exception of the (Thomas) Byrne , Murray , Hawkins and (Breifne) O'Brien cases all of which involved offending conduct that was arguably more grave than in the present case. The sentence imposed is very much on the upper side of the notional bell curve. Such a sentence, which is ostensibly out of kilter with the sentences in the majority of the cases we have reviewed, might be capable of being justified and upheld if properly explained. However, as we have pointed out in The People (Director of Public Prosecutions v Flynn [2015] IECA 290 at para 15:
"[I]f this Court when asked to review a sentence cannot readily discern the trial judge's rationale or how he or she ended up where they did having regard to accepted principles of sentencing such as proportionality, the affording of due mitigation, totality and the need to incentivise rehabilitation in an appropriate case, it may not be possible to uphold the sentence under review even though the trial judge may have had perfectly good, but unspoken reasons, for imposing the sentence in question."
We consider that this is one of those cases, and that the failure to identify a headline sentence, and the amount discounted in mitigation, was in this case an error of principle.
115. This was a complex and multifaceted case. It required rigorous analysis and weighing of the relevant factors.
116. In terms of considerations relevant to the assessment of gravity, the sum involved here was very substantial, involving as it did a seven figure sum. The offending conduct was committed over a lengthy period of time. While the appellant may have initially intended to repay amounts taken by her, it would have been clear to her relatively early on that such ambitions were unrealistic. Despite this she persisted in doing what she was doing and continued it for many years until she was caught. The fraud itself, though easy to commit given the level of trust reposed in her, cannot be said to have been un-premeditated. It may have required no great planning as such, but it was intentional and attracts the intrinsic culpability that goes with intentional criminal conduct. That the appellant was somewhat under financial pressure such that she gave in to temptation somewhat mitigates her culpability, but only very slightly. The breach of trust involved here is a major aggravating factor. That there are two immediate victims involved, and four if the compensating banks are included, is also an aggravating factor. As regards the harm done, the financial losses are significant. Though the losses to the individual victims were somewhat ameliorated by compensation paid by the banks concerned, those banks are in turn at the loss of the sums they have had to pay out. The harm done is very slightly reduced by the fact that an offer of partial restitution was made, albeit not accepted by the two immediate victims who, showing great compassion, did not want the appellant to have to sell her house.
117. We consider that it would have been better if, in this type of complex case, the sentencing judge had opted to more transparently assess the gravity of the case, and to indicate where on the spectrum of penalties it fell to be located. The spectrum in this case ranged theoretically from non-custodial penalties up to imprisonment for ten years, assuming concurrency of sentences and no recourse to consecutive sentencing (for which there was no indication in this case). In truth, this was a case where a custodial sentence to be actually served would have been unavoidable. A three-way division of the scale gives a low range from zero to forty months (i.e., three years and four months), a mid-range from forty-one to eighty months (i.e. six years and eight months) and an upper range from eighty-one to one-hundred-and-twenty months (i.e., ten years). In our assessment, the case involved serious thefts effected by fraud and merited location in upper mid range of potential penalties, though perhaps not at the very top of that range. The case, albeit very serious, was certainly not in our judgment in the egregious category that would have merited its location in the highest range.
118. In terms of mitigation, there was a plea at the earliest opportunity; there was good co-operation, including valuable admissions; there were no previous convictions; the appellant was otherwise of good character; the risk of re-offending was assessed as being low; the appellant was accepted as being genuinely remorseful - indeed she had been overwhelmed by shame and remorse to the point of illness, had withdrawn from society, was pathologically anxious and had had suicidal ideation; the appellant had experienced numerous adversities in her life, including abuse as a child and an abusive relationship, as outlined in the psychological report furnished to the court; she exhibited no trappings of wealth and there was no evidence that the funds had been dissipated on an ostentatious lifestyle; on the contrary the evidence, such as it was, suggested that it had been applied towards the needs and upbringing of her children and on maintaining payments on the family home. In our estimation, the discount required by the synthesis of these factors on whatever pre-mitigation sentence was determined upon could not have been less than 50%.
119. This was a case that required a reflective approach to how best to balance the objectives of sentencing. We have already stated that this was a case where an actual custodial sentence could not have been avoided. We would go further and say that this was not a case in which a token or nominal period of actual custody would suffice, on the basis that the fact of custody was more important than the length of the sentence. There was serious wrongdoing in this case, and it required to be marked by a sentence that served to punish the offender appropriately but proportionately, and one which would sufficiently communicate the censure and deprecation of society in respect of the offending conduct, while also having a meaningful general deterrent effect. To achieve this any actual custodial sentence imposed would require to be measured in years rather than months.
120. By the same token, the need for specific deterrence was slight, and the achievement of rehabilitation in the broad sense was desirable. To reconcile these objectives with those mentioned in the last paragraph required careful calibration of the sentence to ensure that it was sufficient to achieve the objectives of retribution and general deterrence, but no more than that.
121. Ultimately, in circumstances where the sentencing judge's reasoning does not adequately explain how she arrived at her sentence figure, and where based on comparators it appears that her sentence may be out of line with sentences imposed in other fraud cases, we are not convinced that it was correct. While we cannot say for certain that her assessment of gravity and/or that her discount for mitigation was incorrect, there are sufficient grounds for suspecting that the sentence was deficient in one or other respect, or possibly in both respects, to justify us in intervening.
122. In the circumstances we will allow the appeal, quash the sentences imposed in the court below and proceed to re-sentence the appellant.
123. In accordance with our usual practice we invited both sides to put before us on a contingent basis any additional material that they would wish to have taken into account in the event of a re-sentencing. We have been furnished with a report from the Governor of the Dóchas Centre which is highly positive and which records that the appellant is doing well in prison and using her time productively. She has no disciplinary reports, her behaviour is reported as beyond reproach and she is accommodated with minimal staff supervision. She is actively participating in the Framing workshop, assists at the prison reception and in the library, and is a member of the Red Cross group. She has also trained as a listener with the Samaritans and uses that training to support her peers. She has also participated in the STEPS program, and in an Alternatives to Violence program. The report concludes by saying: "Siobhan is respected by her peers, the staff and the wider multi-disciplinary team in Dóchas Centre."
124. Taking into account the range of available sentences, the factors bearing on culpability mentioned earlier in the judgment, and the harm done, we would assess the gravity of the appellant's offending conduct as meriting a pre-mitigation or headline sentence of six years in the circumstances of this case. We have already said that the substantial mitigation available in her case should entitle her to a discount of not less than 50%. Such a discount would reduce her sentence to one of three years' imprisonment, representing a substantial custodial sentence to be actually served.
125. However, we have been particularly impressed to learn that she is doing so well in custody. We feel the appellant should be rewarded for that and incentivised to continue her positive engagement. We are also of the belief that the optimum balancing of competing penal objectives of which we have spoken can best be achieved in the circumstances of this case by some degree of further reduction. In the circumstances, we will suspend the final year of the three-year sentence that we have imposed, for a period of two years following her release on her entering into a bond in the sum of €100 to keep the peace and be of good behaviour during that period. The sentence is to date from the same date as the sentence imposed in the court below.
