APPROVED JUDGMENT
NO REDACTION NEEDED
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THE COURT OF APPEAL
Neutral Citation: [2025] IECA 131
Record No: 47/2024
Edwards J.
McCarthy J.
Kennedy J.
Between/
THE PEOPLE (AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS)
Respondent
V
Michael Lynn
Appellant
JUDGMENT of the Court delivered by Mr. Justice Edwards on the 13th of May, 2025.
Introduction
1. This is an appeal brought by Mr. Michael Lynn (i.e., "the appellant") against the severity of the sentence imposed on him by the Circuit Criminal Court, Dublin following his conviction by a jury on ten counts of theft contrary to s. 4 of the Criminal Justice (Theft & Fraud) Act 2001 (specifically counts nos. 2-10 inclusive and count no. 19 on the indictment). There were a further 21 counts on the same indictment in respect of which the jury failed to agree. A nolle prosequi was subsequently entered by the respondent on those counts, in accordance with s. 12 of the Criminal Justice (Administration) Act 1924.
2. On the 19th of February 2024, the Circuit Criminal Court imposed sentences of imprisonment for 5½ years on each count of which the appellant had been convicted, to run concurrently inter se.
3. The appellant has lodged a Notice of Appeal challenging both his conviction and the severity of his sentences. At case management, the appellant sought leave to be allowed proceed with his appeal against the severity of his sentences prior to the hearing of his appeal against his conviction, and this was granted.
Factual Background
4. At the sentencing hearing of the 19th of February 2024, the trial Court heard evidence from a Detective Sergeant Shane Curtis in respect of the theft offences of which the appellant was convicted. The total sum stolen was €18,144,385 over a period of approximately six months, and involved six separate victims.
5. The appellant was a solicitor by profession and was the principal of a Dublin based firm of solicitors known initially as Michael Lynn & Co, Solicitors, and later as Capel Law, Solicitors. The appellant was also a property developer, sometimes trading through a limited liability company, Kendar Holdings Ltd. The solicitors' firm of Michael Lynn & Co / Capel Law acted for the appellant in regard to his property dealings. The firm in question had a solicitor's client account at the branch of Allied Irish Banks ("AIB") in Crumlin, Dublin 12.
Count no. 2
7. In late December 2006 and early January 2007, the appellant applied for finance from Danske Bank A/S, trading as National Irish Bank ("NIB"), to purchase four separate properties, namely 6 Bolton Court in Bolton Street, Dublin 1; 4 Bolton Court, Bolton Street, Dublin 1; 126 Westland Square, Pearse Street, Dublin 2; and 298 Custom House Harbour, IFSC, Dublin 1.
8. The sentencing court heard evidence that his application for finance to purchase those four properties was processed in the "normal way", i.e. the appellant was required to furnish the bank with a number of documents, to show his net worth and financial state of affairs, so as to comply with the conditions of the loan facility then being sought. Further, it was a requirement that, in the case of each property, the borrower's (i.e., the appellant's) solicitor should provide solicitor's undertakings to register the financial institution's interest in those properties.
9. On the 16th of March 2007, NIB transferred the sum of €1,338,160, to the aforementioned client account of Michael Lynn & Co, Solicitors.
10. The evidence was that the appellant applied for finance from NIB to purchase these four properties, knowing that he had already obtained finance to purchase three of them from one or more of three other financial institutions, i.e., Ulster Bank Limited, Irish Nationwide Building Society and Bank of Ireland, respectively; and where one or more of the properties in question had already been pledged as security in respect of the provision of this earlier finance. In one case, on the 20th of October 2006, the appellant had obtained €3,650,000 million from Ulster Bank in respect of the proposed purchase of eleven properties, one of which was 6 Bolton Court. In another case, on the 22nd of November 2006, the appellant had obtained €439,600 from Irish Nationwide Building Society to purchase 298 Custom House Harbour. In yet another case, on the 13th of December 2006, the appellant had obtained €2,742,000 from Bank of Ireland to purchase eight properties, amongst which were again 6 Bolton Court, and also 126 Westland Square.
11. The appellant did not register himself as the owner of any of those properties and also never registered NIB's interest in those properties. Solicitor's undertakings to register NIB's interest in these properties, purportedly under the signature of Fiona McAleenan, a solicitor in Michael Lynn & Co, Solicitors, were provided to NIB. At the appellant's trial the signatures on these undertakings were acknowledged by the said Fiona McAleenan, as being hers. She also identified the handwriting of another person on the undertakings as being that of a Ms. Liz Doyle, Personal Assistant to the appellant; however, Ms. McAleenan denied having personal knowledge of the undertakings. D/Sergeant Curtis stated that Fiona McAleenan had further denied during her evidence that she had agreed to act as a solicitor for the appellant.
12. Ms. McAleenan had maintained that she was unaware of the detail of any of the undertakings she had signed, and that she regarded it as being the responsibility of the staff member who was dealing with the particular file [in Michael Lynn & Co, Solicitors], which in many cases was the aforementioned Ms. Liz Doyle, to then comply with the undertakings that she had signed.
13. Further, a statement of affairs in regard to the appellant and his company Kendar Holdings, purportedly prepared by the appellant's accountants, Kinsella Mitchell and Associates, which was submitted in support of the NIB application was not in fact prepared by that firm, even though it purported on its face to have been prepared by them. The said purported statement of affairs did not reference the earlier financing obtained from other financial institutions in respect of the same properties for the purchase of which finance was being sought from NIB, and in those circumstances the statement of affairs did not accurately attest the real net worth and financial state of affairs of the appellant and Kendar Holdings. Thus, NIB was unaware of the fact that the appellant had obtained finance from other banks to purchase the same properties prior to this.
Count no. 3
15. The particulars of the offence charged as Count No 3 were that "Michael Lynn, on or about the 12th of June 2007, in the County of the City of Dublin, did steal property, to wit, the amount of €3,725,625 (three million seven hundred and twenty five thousand, six hundred and twenty five Euro) the property of Irish Life and Permanent plc, trading as Permanent TSB."
16. On the 16th of May 2007, the appellant successfully applied for finance from Irish Life and Permanent plc to purchase 12 properties, the individual loan amounts for which totalled €3,725,625. They were: 1 Island Villas, Dublin 1 (€417,000); Apartment 4 Mellor Court, Dublin 1 (€236,250); 53 Shelbourne Park Mews, Dublin 4 (€339,750); 38 Pembroke Street, Irishtown (€431,250); Apartment D15 Lyreen Manor, Maynooth (€276,000); Apartment E11 Lyreen Manor, Maynooth (€270,000); Apartment 12A Donard Walk, Dublin 7 (€307,500); Apartment 37, 52 Mountjoy Square, Dublin 7 (€247,875); Apartment 22, Shelbourne Park Mews, Dublin 4 (€326,250); Apartment 8, Shelbourne Park Mews, Dublin 2 (€308,250); Apartment 55, 52 Mountjoy Square, Dublin 7 (€281,250); and finally, 181 Wintergardens, Dublin 2 (€284,250).
17. The appellant was required to furnish Irish Life and Permanent plc with a number of documents (i.e., details of his net worth and financial wellbeing and statement of affairs), which were to comply with the conditions of the loan facility which he was seeking from that bank.
18. Similar to count no. 2, the appellant also arranged for his firm to provide the solicitor's undertakings in respect of these 12 properties. On the 12th of June 2007, Irish Life and Permanent plc being satisfied with the documentation they had received, issued a cheque in the sum of €3,725,625 payable to Capel Law Solicitors. This was negotiated at AIB's Blanchardstown branch and was credited to the solicitor's client account of Michael Lynn and Company / Capel Law in the AIB branch in Crumlin.
19. In respect of those 12 properties for which the appellant obtained purchase finance from Irish Life and Permanent plc, but unbeknownst to that financial institution, the appellant had previously obtained finance to purchase all 12 of the properties in question, borrowing different amounts from one or more of the following institutions in respect of each property, namely Irish Nationwide Building Society, Anglo Irish Bank, Bank of Scotland, and Ulster Bank, respectively, and indeed had pledged some of those properties as security to gain that earlier finance. We will particularise the previous borrowing over the next four paragraphs.
20. As appears from a spreadsheet exhibited at the sentencing hearing, and referenced by D/Sgt Curtis in his evidence, the appellant had obtained €1,024,400 from Irish Nationwide Building Society in respect of the proposed purchase of three properties for which finance was again later obtained from Irish Life and Permanent plc, one of which was 38 Pembroke Street, Irishtown (€460,000); another of which was Apartment 37, 52 Mountjoy Square, Dublin 7 (€260,400); and the third of which was Apartment 55, 52 Mountjoy Square, Dublin 7 (€300,000).
21. He had also obtained a further €3,318,225 from Anglo Irish Bank in respect of the proposed purchase of the following properties for which finance was later again sought and obtained from Irish Life and Permanent plc, namely 1 Island Villas, Dublin 1 (€468,000); 181 Wintergardens, Dublin 2 (€303,200); 53 Shelbourne Park Mews, Dublin 4 (€386,750); Apartment 22, Shelbourne Park Mews, Dublin 4 (€348,000); Apartment 37, 52 Mountjoy Square, Dublin 7 (€276,000); Apartment 4 Mellor Court, Dublin 1 ( €254,000); Apartment 55, 52 Mountjoy Square, Dublin 7 (€309,600); Apartment 8, Shelbourne Park Mews, Dublin 2 (€356,000); Apartment D15 Lyreen Manor, Maynooth (€312,800); and Apartment E11 Lyreen Manor, Maynooth (€303,875).
22. Further, the appellant had also obtained a further €689,000 from Bank of Scotland (Ireland) in respect of the proposed purchase of the following properties for which finance was again later sought and obtained from Irish Life and Permanent plc, namely Apartment 12A Donard Walk, Dublin 7 (€287,000); and 38 Pembroke Street, Irishtown (€402,500).
23. The appellant had also obtained a further €388,864 from Ulster Bank in respect of the proposed purchase of 53 Shelbourne Park, Dublin 4 for which finance was again later sought and obtained from Irish Life and Permanent plc.
24. The interests of Irish Life and Permanent plc were not registered in respect of any of the 12 properties concerned.
25. A statement of affairs relating to the appellant, purportedly prepared by Kinsella Mitchell and Associates, and provided to Irish Life and Permanent plc, had not in fact been prepared by that firm, as outlined by a Mr. John Kinsella who attended the appellant's trial and gave evidence to this effect. Again, this statement of affairs contained no disclosure of the details of the finance that the appellant obtained from the other financial institutions, prior to making the application to Irish Life and Permanent plc.
26. Once again in this case, solicitor's undertakings to register the interest of Irish Life and Permanent plc were supplied to that institution. These were under the purported signature of Fiona McAleenan. However, Ms. McAleenan had contended in evidence at the appellant's trial that they had been signed by the aforementioned Liz Doyle using her (i.e., Fiona McAleenan's) name. Ms. McAleenan disavowed any personal knowledge of the transaction with Irish Life and Permanent plc.
Count no. 4
28. The particulars of the offence charged as Count No 4 were that "Michael Lynn, on or about the 20th of October 2006, in the County of the City of Dublin, did steal property, to wit, the amount of €3,650,000 (three million six hundred and fifty thousand Euro) the property of Ulster Bank Ireland Limited."
29. On the 13th of September 2006, the appellant applied to Ulster Bank Ireland Limited for loan finance for the purchase of 11 properties, the individual loan amounts for which totalled €3,650,000. These properties were 107 Merchants Road, Dublin 1 (€227,481.19); 109 Custom Hall, Dublin 1 (€274,694.26); Apartment 80, 109 Parnell Street, Dublin 1 (€245,508); 53 Shelbourne Park Mews, Dublin 4 (i.e., this is the transaction referenced at para 23 above) (€388,864.06); Apartment 6, Bolton Court, Dublin 1 (€333,066.79.); 10 Corduff Cottages, Dublin 15 (€272,548.21); 16 Bessborough Avenue, Dublin 3 (€493,591.25); 41 Bessborough Avenue, Dublin 3 (€493,591.25); Apartment 31, The Court, Dublin 1 (€268,256.11); Apartment 10, 55 Mountjoy Square, Dublin 1 (€343,367.83); and 143 Custom Hall, Dublin 1 (€309,031.05).
30. These applications were again said to have been processed by the bank "in the normal way", relying on information such as a statement of affairs, draft accounts and indications of the appellant's net worth, submitted to them by or on behalf of the appellant; and also on solicitor's undertakings to register the bank's interest in the properties concerned, furnished by Michael Lynn & Co, which firm was ostensibly acting on behalf of the appellant in respect of his purchase of the 11 properties in question.
31. However, on the 12th of September 2006 (i.e., the day before he applied to Ulster Bank Limited for loan facilities in respect of the 11 properties referred to at para 29), the appellant had also submitted an application to Irish Nationwide Building Society for finance, to purchase some of those properties, namely 107 Merchant's Road, Dublin 1; 109 Custom Hall, Gardiner Street, Dublin 1; Apartment 80, 109 Parnell Street, Dublin 4; and Apartment 31, The Court, Bolton Street, Dublin 1. This application was ultimately successful, and funds were drawn down by the appellant, but none of this was disclosed by him to Ulster Bank Limited.
32. Further, on the 15th of September 2006, (i.e., two days after the appellant applied to Ulster Bank for loan facilities in respect of the 11 properties referred to at para 29), he also applied to Bank of Ireland Mortgages Bank Limited, for finance to purchase eight properties, five of which were included in the application that he had previously made to Ulster Bank. Again, this application was successful, and funds were drawn down by the appellant, but none of this was disclosed by him to Ulster Bank Limited.
33. Further, on the 14th of November 2006, the appellant applied to Bank of Scotland Ireland for finance to purchase 10 properties, 3 of which had been used as security to obtain finance from Ulster Bank in relation to the 11 properties referred to at para 29 above. Again, this application was successful, and funds were drawn down by the appellant, but none of this was disclosed by him to Ulster Bank Limited.
34. Then, on the 6th of February 2007, he successfully applied to NIB for finance to purchase four properties, one of which, namely Apartment 6, Bolton Court, Dublin 1 had previously been used as security to obtain finance from Ulster Bank Limited. Further, on the 21st of February 2007, he successfully applied to Anglo Irish Bank for finance to purchase eight properties, two of which had been used as security to obtain finance from Ulster Bank Limited. On the 14th of March 2007, he successfully applied for further finance to purchase an additional 10 properties, four of which had been used as security to obtain finance from Ulster Bank Limited. On the 24th of April 2007, he successfully applied to Irish Life and Permanent plc trading as PTSB, for finance to purchase eight properties, three of which had already been used as security to obtain finance from Ulster Bank Limited. Further, on the 16th of May 2007, the appellant successfully applied to PTSB again, for finance to purchase twelve properties, one of which was used as security to obtain finance from Ulster Bank Limited. Again, while funds were drawn down by the appellant on foot of these various applications, none of this was disclosed by him to Ulster Bank Limited.
35. Regarding the statement of affairs and the draft accounts submitted with the application to Ulster Bank for finance to purchase the 11 properties referenced at para 29 above, Mr. John Kinsella gave evidence at the appellant's trial that his firm did not prepare the statement of affairs so submitted, notwithstanding that it purported on its face to have been prepared by his firm, Kinsella Mitchell & Associates. Mr. Kinsella had pointed out that the statement of affairs document was not dated and did not bear his firm's stamp or signature. He further stated that he did not recognise any of the properties that were listed in the application, despite the fact he was the appellant's accountant at that time. As regards accounts, his evidence at the trial was that when he and his firm did prepare accounts for the appellant, these were based on information supplied by the appellant. He could not say if the information supplied to them was accurate or not, and they had simply relied on the information provided to them.
36. Apropos solicitor's undertakings relevant to the 11 Ulster Bank financed properties, these again bore the signature of Fiona McAleenan, with the remainder of the document having been filled out by the aforementioned Liz Doyle. Again, Ms. McAleenan had maintained that she had no personal knowledge of the transactions and that it was the responsibility of the person managing the file in Michael Lynn & Co to follow up on those undertakings.
37. The sum of €3,650,000 so obtained was, as found by the jury, stolen, and it has never been repaid.
Counts nos. 6,7,8 and 10
38. These counts were particularised in the following terms:
Count No 6:
"Michael Lynn, on or about the 8th of March, 2007, in the County of the City of Dublin, did steal property, to wit, the amount of €224,000 (two hundred and twenty four thousand Euro) the property of Bank of Scotland (Ireland) Limited."
"Michael Lynn, on or about the 29th of March, 2007, in the County of the City of Dublin, did steal property, to wit, the amount of €406,000 (four hundred and six thousand Euro) the property of Bank of Scotland (Ireland) Limited."
Count No 8:
"Michael Lynn, on or about the 29th of March, 2007, in the County of the City of Dublin, did steal property, to wit, the amount of €406,000 (four hundred and six thousand Euro) the property of Bank of Scotland (Ireland) Limited."
Count No 10:
"Michael Lynn, on or about the 20th of April, 2007, in the County of the City of Dublin, did steal property, to wit, the amount of €256,200 (two hundred and fifty six thousand, two hundred Euro) the property of Bank of Scotland (Ireland) Limited."
39. These counts relate to a successful application made on the 14th of November 2006 to Bank of Scotland (Ireland) Limited, by the appellant seeking finance to purchase 10 residential investment properties. Only the four which relate to the counts upon which he was found guilty were particularised by D/Sgt Curtis. These were 10 Corduff Cottages, Dublin 15, to which Count No 6 relates; 16 Bessborough Avenue, Dublin 3 to which Count No 7 relates; 41 Bessborough Avenue, Dublin 3 to which Count No 8 relates; and 5 Hibernian Avenue, Dublin 3 to which Count No 10 relates.
40. Accordingly, Bank of Scotland (Ireland) Limited advanced €224,000 on the 8th of March 2007 to the appellant to purchase 10 Corduff Cottages. This property had already been used by the appellant as security with Ulster Bank Limited on the 20th of October 2006 and with Bank of Ireland on the 13th of December 2006.
41. On the 29th of March 2007, Bank of Scotland (Ireland) Limited advanced two separate sums of €406,000 to purchase 16 Bessborough Avenue, Dublin 3 and 41 Bessborough Avenue, Dublin 3, respectively. Again, the appellant had previously obtained a loan from Ulster Bank Limited on the 20th of October 2006, and from Bank of Ireland on the 13th of December 2006, where both of those properties had been used as security and where the appellant had already also applied to those banks for finance (which was granted and drawn down in each case) to purchase those two properties.
42. Further, Bank of Scotland (Ireland) Limited advanced €256,200 on the 20th of April 2007 to the appellant, to purchase 5 Hibernian Avenue, Dublin 3. Again, evidence established that the appellant had already obtained a loan in respect of this property from Bank of Ireland Limited on the 13th of December 2006.
43. As in previous cases, documentation was supplied to Bank of Scotland (Ireland) Ltd by the applicant in support of the finance applied for. This again included a statement of affairs, purportedly prepared by Kinsella Mitchell & Associates. The sentencing court was told that, regarding the statement of affairs for this loan, Mr. John Kinsella when giving evidence at the appellant's trial had "confirmed that it was a forgery". The solicitor's undertakings which were provided to Bank of Scotland (Ireland) Limited were also not followed through upon, and no interest was registered in that bank's favour in respect of any of the properties in question.
44. The sums of €224,000, €406,000, €406,000 and €256,200, respectively, so obtained were, as found by the jury, stolen, and they have never been repaid.
Count no. 19
45. Count No 19 on the indictment was particularised as follows: "Michael Lynn, on or about the 15th of January, 2007, in the County of the City of Dublin, did steal property, to wit, the amount of €508,400 (five hundred and eight thousand, four hundred Euro) the property of Irish Nationwide Building Society."
46. The sentencing court heard evidence that on the 7th of December 2006, the appellant applied for a mortgage to purchase 11 Cowper Street, Stoneybatter, Dublin 7. Irish Nationwide Building Society (i.e., "INBS") accepted information supplied in the appellant's application and his supporting documentation, and ultimately, had forwarded him the sum of €508,400 on the 15th of January 2007 for the purchase of the above property. That cheque was negotiated at the branch of AIB at Blanchardstown and then was lodged into the client account of Michael Lynn and Company, Solicitors, held at AIB Crumlin Road, Dublin 12.
47. This sum of money was never applied to the purchase of the property in question, or indeed in so far as is known any property. D/Sgt Curtis testified that "it was simply a sum of money that went into the Michael Lynn and Company client account". The named property, i.e., 11 Cowper Street, Stoneybatter, Dublin 7 was taken off the market by the owners thereof early in 2007. Indeed, the deposit which had been paid was subsequently returned to Michael Lynn and Company, Solicitors. INBS were not apprised of the withdrawal of the property from the market by the vendors, and the money drawn down from INBS by or on behalf of the appellant and lodged to the client account of Michael Lynn and Company, Solicitors was never returned to the INBS.
48. Again, there was evidence of the provision of a falsified statement of affairs in connection with this transaction; and of the provision of a solicitor's undertaking, under the signature of Ms. McAleenan, but with the document otherwise having been completed by the aforementioned Liz Doyle, which solicitor's undertaking was not honoured.
49. The sum of €508,400 so obtained was, as found by the jury, stolen.
Counts nos. 5 and 9
50. These counts were particularised in the following terms:
Count No 5:
"Michael Lynn, on or about the 12th of April, 2007, in the County of the City of Dublin, did steal property, to wit, the amount of €3,780,000 (three million, seven hundred and eighty thousand Euro) the property of ACC Bank Plc."
Count No 9:
"Michael Lynn, on or about the 19th of April, 2007, in the County of the City of Dublin, did steal property, to wit, the amount of €3,850,000 (three million, eight hundred and fifty thousand Euro) the property of Bank of Scotland (Ireland) Limited."
51. These counts relate to a property known as Glenlion House, Thormanby Road, Baily, Howth, Co Dublin.
52. This was a private residential home that was for sale, and for the purchase of which the appellant applied, over a period of 15 days, for three separate loans from three separate financial institutions.
53. On the 6th of December 2006, the appellant sought (purportedly with his wife Bríd Murphy) €3.78 million from ACC Bank, for the purchase of Glenlion. Two statements of affairs were submitted in support of this application that purported to emanate from Kinsella Mitchell and Associates Accountants; and again, Mr. John Kinsella confirmed in evidence at the appellant's trial that they had not in fact been prepared by his office and that they were forged. The loan sought was, however, granted and €3.78 million was paid to the appellant on the 12th of April 2007. ACC Bank appointed its own solicitor in respect of the conveyance and its interests were registered as a first legal charge.
54. Then, on the 20th of December 2006, the appellant (purportedly with his wife Bríd Murphy) also sought €3.85 million from Bank of Scotland (Ireland) Limited in order to purchase Glenlion. D/Sgt Curtis testified that "it appears that false documentation was submitted in order to obtain this finance, again in relation to statements of affairs, confirmed by John Kinsella not to have emanated from his office, even though they purported to do so".
55. In this case, there was again a solicitor's undertaking signed by Fiona McAleenan, but which had been partially completed in the handwriting of the aforementioned Ms. Doyle, which was furnished to Bank of Scotland (Ireland) Limited to register the bank's interest against the property. Once again, this undertaking was not honoured.
56. On the 19th of April 2007, Bank of Scotland (Ireland) Limited granted the loan and €3.85 million was provided to the appellant.
57. In circumstances where the evidence was that three loans from three separate financial institutions had been sought in respect of Glenlion, it should be stated for completeness that the sentencing court heard evidence that on the 4th of April 2007 a loan in respect of Glenlion was also obtained from INBS for €4.125 million. While a count charging theft of that amount from INBS was subsequently preferred against the appellant (Count no 21), the jury were unable to agree a verdict on that count. A nolle prosequi has since been entered by the respondent in respect of that matter.
58. The sums of €3,780,000 and €3,850,000, respectively, so obtained were found by the jury to have been stolen.
Registration of Interests
59. In addition to ACC Bank plc's registration of a first legal charge against Glenlion in respect of the loan finance that it advanced, Bank of Scotland (Ireland) Limited and Anglo Irish Bank plc, also had their interests registered in respect of some, but not all, of the property purchases for which they had provided finance, in circumstances where, in relation to some transactions, those banks had insisted on retaining an independent solicitor to ensure that it was carried out.
60. However, where these and other financial institutions concerned, were content to rely on solicitor's undertakings furnished by Michael Lynn & Co / Capel Law, on behalf of the appellant, to do so, these undertakings were not complied with.
The Defence Put Forward at Trial
61. The appellant put forward the defence that he had "off-books agreements" with the various banks and the financial institutions from whom he sought loan finance. His defence was that the banks and financial institutions concerned knew that monies were being provided not for the purpose of purchasing the properties set out in the paperwork, and that in fact the loan applications were in reality to obtain finance to be applied towards funding the appellant's property development activities abroad. The appellant gave evidence that all the banks and financial institutions concerned knew that he was taking out multiple loans with other institutions on the same properties, and that all the financial institutions were happy with that arrangement. He suggested that the statements of affairs and solicitor's undertakings furnished did not really count for much - that in reality there was no expectation by those with whom he was dealing that first legal charges in favour of the banks concerned would be registered. This was something that he never did.
62. The prosecution called rebuttal witnesses from the banks and financial institutions concerned, who "denied vehemently" the suggestion that there were any arrangements of the sort that the appellant had suggested.
63. The jury rejected the defence put forward by the appellant in convicting him of the 10 counts giving rise to the sentences now being appealed as being unduly severe.
The Appellant's Departure from the Jurisdiction and Subsequent Events
64. After the collapse of the appellant's legal practice, a Law Society investigation was commenced, as described in evidence in the High Court on the 9th of April 2018 by Garda Inspector Patrick Linehan during the appellant's application for bail pending his trial, a transcript of which has been provided to us. The appellant had been due to appear before the President of the High Court, Johnson P, in the "Solicitors' Matters list" on the 12th of December 2007, but failed to appear. On that date Johnson P made an Order for the appellant's attachment and entrusted the execution of that Order to gardaí. The gardaí had indeed commenced their own investigation and were in any event desirous of interviewing the appellant. However, attempts to execute the Order for Attachment were unsuccessful as it transpired that the appellant had already left the jurisdiction, travelling initially to London, from where he would later travel to Portugal. The evidence received both by the sentencing judge, and by the High Court in the bail hearing, was silent concerning whether the appellant was still in the jurisdiction when the Order for his Attachment was made, or as to when he became aware of it. At any rate, it is clear that at the time of leaving the jurisdiction, the appellant was not charged with any crime. Moreover, there was no provision for an extradition or any other process to enforce a High Court Order of Attachment against a person who was abroad. Accordingly, when giving judgment on the appellant's bail application the High Court judge (Ní Raifeartaigh J) indicated that "[f]or present purposes I will take it that he left the jurisdiction lawfully at that time."
65. In early 2008 the gardaí were contacted by a solicitor who had received instructions from the appellant, and who apprised them that the appellant was willing to meet with gardaí, but was not willing to return to this jurisdiction in order to do so. In June 2008 it was communicated to gardaí by the appellant's said solicitor that the appellant was agreeable in principle to meeting with gardaí in Northern Ireland at a place and time to be agreed. In November 2008, and before any such meeting had been firmed up, the proposed location was changed to another part of the UK. However, the appellant did not in fact make himself available as proposed at any point. There were in all four attempts made by gardaí to arrange, through this solicitor, to meet with the appellant and his representative(s), with gardaí expressing a willingness to travel to Portugal (and actually making arrangements to do so) to interview him there. Each of these attempts was unsuccessful, with proposed meetings being cancelled at the last minute by the appellant's side, due to claims of late unavailability either on the part of the appellant or his representatives. Ultimately, no meeting with gardaí took place.
66. In June 2011 the appellant moved from Portugal to Brazil. In 2013 a decision was taken by the DPP to charge him with, inter alia, the offences of which he was ultimately convicted. Steps were then taken in early course on behalf of this State to seek his extradition from Brazil, notwithstanding that there was no prior extradition agreement with that country. To that end Ireland entered into an ad hoc extradition agreement with Brazil on foot of which it proved possible to secure the appellant's extradition from Brazil to Ireland.
67. Following the transmission of a request from Ireland to Brazil for the appellant's extradition, the Brazilian government issued domestic arrest warrants for the appellant's arrest, and he was duly arrested in Recife in Northern Brazil on the 29th of August 2013, and was remanded in prison pending his extradition or discharge as the case might be. The appellant fully contested his proposed extradition in the Brazilian courts, right up to the Supreme Court of Brazil, but was ultimately unsuccessful. He was eventually extradited to Ireland on the 1st of March 2018, having spent 1,645 days (approximately four and a half years) on remand in prison in Brazil. The conditions the appellant endured while remanded in custody in Brazil are said by him to have been harsh (an assertion which is not controverted), and this is a matter germane to a point raised by the appellant in this appeal. We will return to and elaborate further upon the remand prison conditions later in our judgment.
68. Upon his return to this jurisdiction, the appellant then brought judicial review proceedings seeking to prohibit his proposed trial, but those proceedings ultimately failed, and he was duly returned for trial to the Dublin Circuit Criminal Court. A first trial took place between the 9th of February 2022 and the 30th of May 2002 but resulted in a disagreement on all counts by the jury. He was then retried at a second trial which took place between the 23rd of October 2023 and the 20th of December 2023, which resulted in his conviction on 10 counts, giving rise to the sentences the subject matter of the present appeal.
69. In addition to his time in prison in Brazil, the appellant spent a further 105 days on remand in an Irish prison before obtaining bail pending being tried.
The Appellant's Personal Circumstances
70. The appellant was born on the 30th of September 1968, and was accordingly aged 55 years when sentenced on the 19th of February 2024,
71. He has no previous convictions.
72. Prior to May 2008 the appellant was a solicitor in private practice in Dublin City under the names or style of Michael Lynn & Co, and Capel Law. He was struck off the roll of solicitors in May 2008. He was also previously a director of, and a principal shareholder in, a company called Kendar Holdings Limited, which company had been engaged in property development abroad. That company is now in liquidation.
73. The appellant is a married man with four children.
74. The appellant was held in Cotel Prison in Recife. He described the conditions there in an affidavit sworn by him on the 16th of February 2024 and provided to the court below. It is unnecessary for the purposes of this judgment to quote it in extenso, although we have considered it in full. It will suffice to summarize aspects of it.
Prison Conditions Experienced
75. In his said affidavit, the appellant characterised the prison reception area in which he spent the first weekend following his arrest as completely overcrowded with extremely basic washing and toilet facilities. The area consisted of 50 m2 and he was sharing with 40 other people. There was one small window, and the temperature was stifling and extreme. Some of the men present carried knives and there was open and continuous use of drugs. There were fights among the prisoners. He was provided with no food and water during this first weekend, and had to drink unpotable water from a shower. He also said that he was provided with no bed or sleeping material and simply slept on a concrete floor.
76. The appellant says that he was subsequently moved to another building, or prison "pavilion", consisting of three cells with a small kitchen area and an outside seating area. This was for prisoners with degrees, or who were police officers, prison officers or state officials. There was access to a small shower and toilet area, but these were rarely working. The walls were covered with old unwashed excrement.
77. The appellant says the prison pavilions were run by prisoners appointed by the Prison Director. These were known as Chaveiros, who were convicted murderers and were armed with guns. Drugs and alcohol were freely available. The appellant had no bed for two months and slept on the concrete floor of the kitchen. Food was very poor, being often contaminated by maggots or vermin or was simply inedible. There were no refrigerated food storage facilities despite temperatures frequently exceeding 40 degrees Celsius in the pavilions. There was little access to additional food or medical/dental services unless bribes were paid. The appellant secured a mattress and blanket after two months following the payment of money to the prisoner who ran the area he was housed in.
78. The appellant suffered from anxiety while in Cotel prison but had difficulty getting anti-anxiety medication. He said that he also experienced recurrent chest infections and pneumonia. Medication supplied to him by his wife from outside the prison was confiscated, despite payments having been made by his wife to allow this "contraband" to be given to him. Sometimes the confiscated medication would later be offered for sale to him. Sometimes he had to go without. He had great difficulty is accessing dental care and suffered for more than 8 months with an acute dental infection.
79. The appellant's limited knowledge of the Portuguese language exacerbated his difficulties in prison.
80. He developed skin cancer due to unprotected exposure to sun (this will be elaborated on separately in a review later in this judgment of medical evidence submitted at the sentencing hearing). He also said that he suffered regularly from gastro-intestinal infections and respiratory infections
81. The appellant claims to have been subjected to frequent beatings by Chaveiros. These were commonplace within the prison, as was rape. He described "an ever present, latent threat of ultra violence". There were constant fights amongst prisoners and numerous mini riots. The appellant claims to have witnessed two murders within the prison, one of which involved a decapitation. He says these had a profound effect on him and led to mental health difficulties for which he has since been prescribed medication.
82. Finally, the appellant contends that his inter-personal relations with his children, two of whom were born while he was in Cotel Prison, suffered during his time there due to him being deprived of any real contact or connection with them.
83. The appellant's description of the prison conditions endured by him is corroborated by the contents of an affidavit sworn by his Brazilian lawyer, Mr. Marcus Vinicius Carvalho Alves de Souza, and documents exhibited therewith, which was also provided to the court below. Further, this court also has an affidavit from the appellant's wife, Bríd Murphy, in which she provides further corroboration as to the conditions in Cotel prison as she witnessed them, and concerning her efforts to provide medication to the appellant while he was there.
Medical and Social Work Reports
84. The Court below received a medical report dated the 12th of February 2024 from a Dr. Quinn of Clonee Medical Centre diagnosing the appellant as suffering from chronic post-traumatic stress disorder arising from traumatic experiences during his lengthy incarceration in Brazil. He was prescribed anti-anxiety medication and was attending psychotherapy. He had been reviewed by two psychiatrists, one in Brazil and one in Ireland. Dr. Quinn described him as now very fatigued both mentally and physically.
85. As to the appellant's physical ailments Dr. Quinn reported that he suffers from chronic asthma. He has a weakened immune system, and while incarcerated in Brazil had numerous recurrent lung infections. He is now very prone to developing respiratory tract infections, and there is a likelihood of a further deterioration in his respiratory function over time. Dr. Quinn reported that he also developed a basal cell carcinoma, which was diagnosed in 2023, due to prolonged exposure while so detained to strong sunshine without having any sunscreen or sun protection. He was said to have sustained significant sunburn damage to his skin. Dr. Quinn reported that he will now be more susceptible to a similar type of cancer, as well as more malignant forms in the form of melanoma. He further opined, "Thus, there is a very real potential concern that his adverse experience in the Brazilian Prison system may deleterious affect Mr Lynn's overall life expectancy"
86. The sentencing judge also received and considered a psychological report, dated the 6th of February 2024, from Dr. Ríoghnach O'Leary. Dr O'Leary reported (inter alia):
"18.18 It is the undersigned's professional opinion that Mr. Lynn continues to meet diagnostic criteria for PTSD. This opinion is based on information reported by Mr. Lynn concerning his current functioning, on collateral information provided by his wife, results on administered personality tests and clinical impressions during interview.
18.19 With regard to his likelihood of reoffending, this assessment did not identify any criminogenic factors present in Mr. Lynn's lifestyle nor personality. To the contrary, Mr. Lynn does not have a history of criminality beyond the index offences, he does not evidence any pro-criminal attitudes, he has a stable place to live, is in a committed long term marriage, and is motivated to be a reliable and nurturing father to his four children who are under the age of 12 years; these are all protective factors which lower the risk of a person engaging in crime.
18.20 In light of this, Mr. Lynn should be considered a Low risk of engaging in any criminality of any nature in the future. In addition, the remorse and guilt Mr. Lynn currently experiences as a result of the repercussions of his behaviour for both his family and himself, act to significantly reduce his risk of recidivism.
18.21 In light of the above, no recommendations are made from the perspective of reducing recidivism. However, nevertheless, it would be of enormous benefit to Mr. Lynn's mental health and emotional well-being for him to attend therapy in the future to continue to process and come to terms with the various highly distressing events when he has experienced in the past twenty years and to further resolve his symptoms of PTSD as the psychological distress that he experiences on an ongoing basis is undoubtedly pervasive, intense and debilitating."
87. A Social Workers Report was also provided to the sentencing judge from a Ms. Valerie Mawe, Social Worker, who reported that the appellant's children's childhood has coincided with ongoing investigation and legal interventions arising from those actions. Throughout this period, the appellant's wife and children have been exposed to the consequences of his actions. This resulted in them experiencing considerable upheaval in their family life, exposure to traumatic events in the Brazil prison service, and the stigma associated with the fact that the appellant has been found guilty of crimes.
88. Ms. Mawe reported that the challenges in family life had also been compounded by some personal losses, the trauma experienced by the appellant in his experience of prison and the fact that the appellant's wife has certain medical concerns of her own (of which both this Court and the court below were apprised, but which we will not further particularise out of respect for her privacy).
89. It was stated that the appellant's diagnosis of Post Traumatic Stress Disorder continues to be a concern as it undermines his resilience to cope and manage feelings of helplessness. Such a diagnosis affects not only the individual but also has an impact on the most caring of families. Despite this, the appellant and his wife were said have succeeded in creating a family life which is nurturing and affectionate in which the children continue to feel protected and cared for by both parents.
90. Ms. Mawe stated that it was impressive to witness how the appellant's relationship as a father to his children has been promoted and maintained even though he was imprisoned for over 4½ years in Brazil and was subsequently detained for a further period following his extradition. This reflected in her view on the shared commitment by both parents to do their very best to give their children security and love and their overall capacity to parent.
91. Ms. Mawe reported that as primary carer, the appellant's wife takes exceptional care of the children. Their dependence on her was of concern in light of her own health issues. However, the family now faced new challenges as they awaited the sentencing scheduled for the 15th of January 2024. Ms. Mawe opined that incarceration of the appellant would have unintentional consequences for the children. She stated that children are at risk of experiencing loss, grief and confusion when a parent is in prison, together with associated stigma. They are at a greater risk than their peers to suffer from low levels of esteem, anxiety, and high levels of trauma particularly in circumstances where they have witnessed their parent being arrested.
92. In conclusion, the social worker respectfully recommended to the sentencing court that, in passing sentence, consideration be given to how the relationship between Mr. Lynn and his children might be best safeguarded.
Sentencing Judge's Remarks
93. On the 20th of February 2024, the sentencing judge passed sentence on the appellant. He stated:
"JUDGE: Thank you. Mr Lynn has been found guilty by a jury of his peers of 10 counts of theft, I believe. The total amount of these thefts was in the region of 18 million. There was two types of thefts involved. One, where basically, Mr Lynn got funds to purchase houses, and he didn't purchase the houses with those funds. He was also obligated to register charges on these particular properties and didn't do that. He was also obligated to do other matters and he didn't comply with that because he didn't purchase the properties with the monies that he received. It seems, as a result of that, the institutions involved, that type of theft between them, lost about €13 million, and they may have recovered some of the monies from insurance policies and such like, but that's not relevant at all to the culpability of Mr Lynn.
In relation to the other matters, it seems he -- with the ACC money to purchase Glenlion, he purchased the family home with that, and it seems, he also received monies from Bank of Ireland Scotland to buy certain properties, and these properties were bought, and charges were executed in favour of those institutions. He was found guilty by the jury in relation to those matters on those counts, on the basis that they found it was dishonest of Mr Lynn not to inform those institutions of the fact that he'd received loans previously in relation to these properties. So, that's about five million. Obviously, I think the behaviour that gave rise to the counts involving the properties that were not bought or registered with the monies, are more serious because they actually resulted in a loss to those institutions.
Now, it seems to me, from listening to the case, and listening to what's been said today, it seems to me, Mr Lynn spotted an opportunity in the undertaking system. It seems, he spotted that he controlled the undertakings through his office, and it seems, he spotted that the institutions were slow to check out whether properties were bought or charges actually registered. He spotted that by reason of his previous dealings with the banks, that the banks did not check. They assumed once the monies were given, the properties would be bought, and the charges would be registered. This wasn't the case in most of these cases, and he spotted this opportunity, and it seems, obviously, the monies were paid. I do accept that Mr Lynn probably thought he could repay the monies. I do accept that, but the monies, it seems, were diverted to other uses. Obviously, he indicated in his evidence that they were diverted to his projects abroad in relation to real estate.
It seems, he gave evidence to the effect that all of the banks involved gave him permission, and certain witnesses were called, and all of the witnesses, to a man and woman, deny that. It seems they all gave evidence to the effect that basically, they had no idea that Mr Lynn was going to redirect these monies, and it seems they were all of the view, all of the witnesses who gave evidence, that as far as they were concerned, that the monies were advanced to purchase the properties, as indicated in the application forms and in particular, in relation to the facility letters.
Now, obviously, at a certain point it seems, it came to the notice of the institutions as to what Mr Lynn did. Certain reports were made to the guards and the investigation commenced. It seems that a certain point, Mr Lynn departed the country, and it seems, the guards made various attempts to interview him, but they weren't successful. If I was to comment, I would say Mr Lynn was leading them a merry dance, that Mr Lynn had no intention ever, of being interviewed by the guards. It seems that at a certain point, he left for Brazil, and it seems that at a certain point, the DPP decided that Mr Lynn should be prosecuted. It seems this country had no extradition treaty with Brazil and obviously, they had to go by an alternative route, and they did go by an alternative route. And it took quite a bit of persistence and diligence on behalf of the guards and in particular the Minister for Justice at that point, and eventually, an application was made to the court system of Brazil, and eventually, the Brazilian Supreme Court found in favour of the Irish State, and Mr Lynn was deported back to Ireland, where it seems, he arrived, he was detained for 105 days I'm told, and it seems he received bail after that.
Now, it seems the first trial, the jury disagreed, and in the second trial, the jury found him guilty of 10 counts and disagreed on another, I think, 11 counts if my memory serves me correctly.
Now, the amount of money involved is very serious. It's 18 million in total. I'm taking it that there was a €13 million loss. I'm taking it that the Bank of Scotland and the ACC recovered most of their money. It seems in the way he dealt with the money, it seems he gave evidence, and Mr Lynn was disbelieved by the jury in relation to certain matters. It seems Mr Lynn's behaviour certainly brought his profession into disrepute and that's certainly an aggravating factor. It seems his behaviour caused severe stress by people who worked with him and obviously, the Court to some degree, takes that into account. It seems that Mr Lynn acted in total disregard in relation to his obligations as a solicitor to be honest and straightforward, and he also disregarded the interests of the people he was working with.
Now, what to say about Mr Lynn? I have no doubt Mr Lynn has many, many good points. I have no doubt he's very energetic. I've no doubt he's very intelligent, and I've no doubt that he's very accomplished. I have no doubt that he is a good family man, and I've no doubt that he's a very generous person to encounter. I have no doubt that obviously, his time in prison will be a burden for his family. I've no doubt that's the case, and he has obviously -- he's well capable of reform, and he's well capable of contributing to this country and society in due course.
In relation to his time in the Brazilian prison, I've no doubt that was onerous, and I've no doubt that was difficult, and I've no doubt that it was pretty inhuman, the conditions he had to endure, but I also, to some degree, he could have, I suppose, lessened his difficulties by agreeing to come home. I'm not saying that this could have been done immediately, but it seems to me, if he had wanted to end the ordeal, it was in his own hands, it seems to me. Now, obviously, I must take into account that he has spent four and a half years in a Brazilian prison. Obviously, he must be given credit for that in my final sentence. In relation to the inhuman conditions, I think I will aggregate up the four and a half years to seven and a half years, and in relation to the sentence I'm going to impose, I'm going to credit him with a seven-and-a-half-year prison term in relation to his stay in Brazil.
In relation to the headline sentence for his behaviour, his global behaviour, I would put it at in the region of 16 years for his global misbehaviour. Obviously, there is some good points. Obviously, by not adopting a certain course, obviously, he cannot gain mitigation for a plea. He fought the trial on two occasions and therefore, that head of mitigation is not open to him, but the heads of mitigation, I suppose, that are open to him, is the lack of record and obviously, the reference he has many, many good points, but the aggravating factors are well set out. And in relation to the headline sentence, I think I'll reduce it from 16 to 13, by reason of the mitigating factors, and it seems to me, I'll give him credit for seven and a half years while in custody in Brazil, and therefore, it seems to me, the appropriate sentence for him in relation to his misbehaviour, is a term of imprisonment of five and a half years, and that's to be commenced on the 20th of December of last year. In deciding that sentence, I've taken into account the 105 days he has spent in custody while awaiting bail, and therefore, it seems to me, the sentence on all of the counts he's been found guilty of, is a term of imprisonment of five and a half, and that's to commence -- that's to be backdated to the 20th of December of last year."
Notice of Appeal
94. In a combined Notice of Appeal against conviction and sentence lodged on the 20th of February 2024, the appellant appealed against the severity and structure of the sentence imposed upon him by the court below. The appellant has advanced fifteen grounds of appeal in respect of his said sentence which (re-numbered after exclusion of the conviction grounds, and to take account of one duplicated ground) are as follows:
(2) Insofar as it was permissible and or lawful, the learned judge failed to give effect to Guarantees provided by the Irish State in extradition proceedings concerning the appellant, wherein it was warranted to the Brazilian Supreme Court that the appellant would receive the benefit of time served in that jurisdiction. Such guarantees must by implication, having regard to the appellant's right to equal treatment, entitle the appellant to rely on the period spent in custody in Brazil, in any application for remission of the sentence imposed by the learned judge. In circumstances where the judge did not impose a 13 year sentence simpliciter, the appellant has been unlawfully deprived of the entitlement to rely on the 7½ year period credited to him as time served in Brazil. On its face, the order of the Circuit Court, being a Court of record, does not show any evidence that the guarantees provided by the Irish State have been complied with.
(3) The sentence of the appellant was invalid, having regard to his constitutional guarantee of equality, as its structure excludes him from relying on time served for the purposes any application for remission of his sentence.
(4) The learned sentencing judge erred in principle and law in identifying a headline sentence of 16 years, in circumstances where
a. The judge gave no indication of the bracket of offending in which he had placed the offence for which the appellant was convicted and sentenced. In so doing, no reasons in that regard were given.
b. The judge erred in principle in refusing to consider comparative cases, such as that of DPP v Thomas Byrne, being the closest factual comparator, in addition to other relevant case law submitted to the Court.
c. Having regard to appropriate comparator cases, the judge failed to have regard to the absence of aggravating factors in the case of this appellant, such as the abuse of the Solicitors Client account and client injured parties, in the cases of for instance, DPP v Thomas Byrne DPP v Cassidy et al.
d. The learned judge failed to determine the level of financial loss actually suffered by the Complainant institutions.
e. There were no primary findings of fact made on matters relevant to the personal culpability of the appellant, for instance, the credibility contest between Liz Doyle and Fiona McAleenan.
(5) The learned judge, erred in identifying the maximum possible sentence as being 100 years.
(6) In identifying a headline sentence of 16 years, the Court by implication imposed a consecutive element in the structure of the sentence. This was denied by the Court, see transcript 19th February 2024 page 35 at lines 7 18. It appears, notwithstanding that the individual maximum sentence on each count was 10 years, the headline necessarily involved the imposition of consecutive sentencing yet the Court appears to have imposed a sentence of 5 ½ years "on all of the counts he's been found guilty of". [19th February 2024, page 34 lines 31 - 32.] The Court erred in not appropriating which of the counts were to be consecutive, for the purposes of the headline sentence or otherwise.
(7) The Court further erred in failing to give a reasoned decision or adequately reasoned decision as to why consecutive sentencing was appropriate. In particular, the Court did not indicate which behaviour was considered to be an aggravating fact for the purpose of the base sentence, and in failing to give a reasoned decision, the appellant is unaware whether the "double counting" rule has been engaged or breached by the sentence imposed. In the absence of reasons, the appellant's ability to litigate this appeal is impaired.
(8) In failing to impose a consecutive sentence in respect of identified counts, in the event of a partially successful appeal, i.e. this Court intervenes in relation to conviction and/ or sentence on one or some counts but not all, the appellant would be required to serve a sentence of 5 ½ years as a function of default rather than in consequence of a reasoned decision by the sentencing Court. In such a scenario, this Honourable Court would be required to re-sentence the appellant, on all counts, notwithstanding that no errors were successfully litigated by him in the appeal.
(9) The Court had no regard to the totality principle when considering the issue of consecutive sentencing or otherwise
(10) The learned sentencing judge failed to give adequate weight to the mitigating factors asserted by the appellant, by way of limited illustration:
a. The judge failed to identify what mitigation was accepted by the Court when sentencing the appellant. Insofar as the judge failed to refer to mitigation and in so doing rejected same, the judge failed to give reasons as to why mitigation offered on behalf of the appellant was not accepted. In failing to deliver a reasoned decision on mitigatory evidence that was rejected, the judge has impaired the ability of the appellant to conduct an appeal and has therefore deprived him of his fair procedure rights.
b. The learned judge received a considerable volume of documentation in support of the appellant's plea in mitigation, due to the brevity of the judge's consideration of same, no or no adequate weight was given to the evidence so submitted.
(11) The learned judge erred, when reducing the headline sentence of 16 years to 13 years, by reason of the mitigation presented by the appellant, in including in that reduction a period of 105 days of pretrial detention in this jurisdiction. In those circumstances, the judge erred in
a. Treating pre-trial detention as a matter of mitigation
b. Imposed a sentence the effect of which was to deprive the appellant of the ability to rely on the 105 period of custody for the purposes of an application for remission of his sentence.
(12) The learned trial judge failed to vindicate the right of equality of the Applicant pursuant to Article 40.1 of the Constitution. The appellant, has an equal right to all other convicted persons to apply for remission of sentence and in so doing, to rely on time spent in custody. errored in failing to attach adequate weight at all to the mitigating factors offered by and on behalf of the Applicant notwithstanding the fact that the Applicant was not of previous character and had a directly relevant previous conviction.
(13) The learned trial judge failed to take into account at all the rehabilitative capacity of the Applicant and failed to structure a sentence to give any consideration to rehabilitation.
(14) The learned trial judge errored in imposing a sentence which in all of the circumstances failed to take into account adequately or at all the personal circumstances of the accused man.
(15) The learned trial judge imposed a sentence which was in breach of the recognised principles of sentencing with the resultant effect that it was too severe.
Submissions on Appeal
Appellant's Submissions
95. The appellant submits that the headline sentence identified by the sentencing judge was excessive and that the sentencing judge's consideration was inadequate on the matters of quantum of loss and victim impact, relative to comparative cases. The appellant referred to the cases of The People (Director of Public Prosecutions) v. (Thomas) Byrne Dublin Circuit Criminal Court, 2nd December 2013 (i.e., "Thomas Byrne"); The People (DPP) v. Hawkins [2014] IECA 38 (i.e., "Hawkins"); and Kieran Wallace v. Harry Cassidy, John White and John Mulholland [2016] IEHC 689 (i.e., "CHC").
96. In addition, the appellant submits that the sentencing court erred in concluding that recovery generally and the financial impact on the victim were irrelevant when considering the question of loss and culpability.
97. Further, the appellant submits that inadequate weight was given to the conditions of his detention in Brazil, which were submitted at trial, to have exceeded the threshold under Article 3 of the European Convention on Human Rights (i.e., "the ECHR") prohibiting inhuman treatment and punishment. Thus, the term of imprisonment of seven-and-a-half years was an insufficient discount to reflect the mitigation "properly due to the appellant" arising from his detention in Brazil. Relating to this matter, the appellant submits that there was no evidence to support the sentencing judge's apparent determination, that the appellant "... to some degree, he could have, I suppose, lessened his difficulties by coming home". The appellant contends that "this "finding" appears to have been influential in the level of discount afforded to the appellant in respect of pre-trial detention conditions".
98. The appellant submits that inadequate weight was given to the mitigation evidence and that the sentencing judge erred in including time served in custody as part of the time discounted for mitigation. During sentencing, the Court below allowed a period of 3 years' discount from the headline sentence of 16 years by way of mitigation including a period of 105 days for time served by the appellant in Cloverhill Prison before the appellant was admitted to bail.
99. The appellant submits that the structure imposed by the sentencing judge has wrongly denied him the ability to rely on time served in custody for the purpose of remission. This submission is grounded on the appellant's right to protection from unequal treatment as provided for in Art. 40.1 of the Constitution. It is submitted that:
"The learned judge erred in principle and in law in structuring a sentence of 13 years, crediting the Appellant with 7 ½ years and imposing a sentence of 5 ½ years, commencing on the 20th December 2023 and/ or in the alternative, erred in the form of order made by failing to record in the committal warrant that the period of 13 years was the true sentence imposed on the Appellant".
100. In addition, the appellant submits that the decision of the sentencing judge to "deprive" him of the ability to rely on the entirety of his time served, was:
· "Not a legitimate exercise of the discretion of a sentencing court,
· invidious in the context of the right to equality,
· either incompatible with Clause II of Note Verbale 04/18 or render impossible the Executive Branch's capacity to comply with same and/or
· delivered in the absence of reasons".
101. Further, the appellant outlines that his grounds of challenge to the imposition of a five-and-a-half-year sentence are on the basis of the Constitutional guarantee of equality in that the appellant is in an invidiously unequal position to a comparative sentenced person, who can avail of time served in any application for remission.
Respondent's Submissions
102. The respondent submits that there was no error in principle or in law in respect of the sentence imposed upon the appellant in the within proceedings. In addition, the respondent submits that "even if an error in principle is justified, the sentence imposed was appropriate in all the circumstances and should not be reduced".
103. The respondent submits that the sentencing judge was "abundantly" aware of the offences committed and the particulars of the appellant by the date sentence was passed.
104. The respondent submits that the sentence is appropriate having regard to the need for punishment and deterrence. The respondent states that "sufficiently strong punishment was and is necessary for these offences due to their gravity and to reflect society's opprobrium". The respondent maintains that these offences are "a determined, sophisticated, and unyielding exploitation of a systemic weakness identified by a person trusted to uphold that system for the benefit of all".
105. The respondent submits that the three comparator cases outlined by the appellant (Thomas Byrne, Hawkins, and CHC) have "little to no value". The respondent contends that these cases do not indicate a trend and only in respect of Hawkins is there the benefit of a written judgment comprehensively dealing with the germane aspects of the case. Further, the respondent submits that the appellants view that the sentencing judge erred by not engaging with a comparison of the Thomas Byrne case is misconceived. The respondent states that "that sentence was passed by a court of commensurate jurisdiction, so the court was not obliged to consider it".
106. In addition, the respondent submits that the reduction in the headline sentence to reflect mitigation is not an error in principle or in law by the sentencing judge. The sentencing judge correctly identified a mitigating factor and reduced the sentence accordingly.
107. Further, the respondent submits it is not the role of the sentencing judge to look beyond the verdict and there is no obligation to make findings of fact on every aspect of the trial evidence. The respondent states that the "continued attempts to impugn the character of innocent people, after lengthy cross examination and ultimate conviction, might be seen as a significant aggravating factor".
108. Concerning the appellant's submission that the sentencing judge engaged in double counting by referring to his role as a solicitor in circumstances where the appellant was sanctioned in the High Court pursuant to the Solicitor Acts leading to his name being struck off the rolls, the respondent submits that "this is patently absurd". The respondent contends that this has no bearing on the necessary punishment for the crimes he had committed and refers the Court to Conroy v. AG [1965] 1 I.R. at p.442 per Walsh J.
109. The respondent submits that a global sentence is "entirely appropriate" and refers the Court to the case of DPP v. Casey [2018] 2 IR 337.
Court's Analysis & Decision
Grounds (1), (2), (3) & (12)
Structuring of the Sentence and Credit for Time on Remand Awaiting Extradition
110. Significant issues arise in this case for determination by this Court as to the correct treatment at a sentencing hearing of time served in prison by a defendant while on remand awaiting either trial or sentencing in this jurisdiction; and secondly the correct treatment of time served in prison abroad by a defendant while on remand awaiting extradition either for the purpose of trial or to serve a sentence. In each situation, how is that circumstance to be taken into account, if at all; and in each instance was it done correctly in this case?
Credit or Allowance for Time Spent on Remand in this Jurisdiction
111. As a general rule, a person who has been deprived of their liberty by virtue of serving time in prison while on remand exclusively for the purpose of awaiting trial for an alleged offence or offences, or for sentencing in respect of an offence of which they have actually been convicted, or to which they have pleaded guilty, should receive credit, in whole or in part, for that time, alternatively some appropriate allowance should be made in respect of it, against any sentence imposed or to be imposed for the offence or offences in question. The logic for doing so is readily apparent. They have been deprived of their liberty, and such deprivation should in principle, and to a greater or lesser extent as the circumstances of the case may dictate, count towards, or at least be taken into consideration in some way, in determining the appropriate proportionate further punishment to be applied in their case.
112. As to the amount of credit, it is frequently the case that credit is afforded on a pro-rata basis with the time that has actually been served, although a sentencing court has discretion not to do so where there are good and cogent reasons for not giving credit, or full credit, for the entire period spent on remand in structuring an appropriate sentence, as occurred in The People (DPP) v. Flaherty [2015] IECA 161, and in The People (DPP) v. Byrne [2015] IECA 235.
113. In the Flaherty case, the Court of Appeal said, per Mahon J, said at para 9:
"While it is generally the practice, when arriving at the appropriate sentence for a particular offence and a particular offender, to allow full credit for time spent in custody prior to the sentencing date, it is not mandatory that this be done, and indeed in some instances which might be described as exceptional, it would not be appropriate to so do. Sentencing judges should have a discretion to decline to give any credit, or alternatively to give limited credit, for time spent in custody in appropriate cases, and with due regard to the totality principle."
114. In the Flaherty case, the appellant complained unsuccessfully that the sentencing judge had so structured his sentence as to only afford him partial credit for time served on remand. The circumstances of the case were, however, that the manslaughter offence for which the appellant was being sentenced was committed during the currency of a suspended sentence, which suspended sentence had only just been reactivated. The sentencing judge felt that the fact that the manslaughter offence had been committed during the currency of a suspended sentence required to be marked in some way. He gave effect to this by declining to give full credit for time served on remand. As Mahon J pointed out, he was in reality treating the manslaughter offence as having been aggravated, and as meriting a higher sentence, by virtue of having been committed during the currency of a suspension of an earlier sentence. The Court of Appeal found no error in the sentencing judge's decision to give effect to this view by structuring his sentence so as to only afford the appellant partial credit for the time he had served on remand.
115. In the Byrne case, the complaint to the Court of Appeal was that the sentencing judge had failed to give credit for time spent on remand. While the sentencing judge had not expressly done so, he had stated in passing sentence that the sentence would have been longer but for time spent on remand. The Court of Appeal found no error in the circumstances.
116. There is no difficulty with due allowance being made at sentencing for time served on remand, providing it is done in the right way, and in a way that shows judicial respect of the separation of powers. If all that is being sought is no more a pro-rata deduction from or allowance against the proposed sentence in respect of time actually served in custody while on remand, a sentencing judge is at full liberty to make that deduction or afford that allowance, either in whole or in part. This is frequently done by a backdating of the commencement date of the sentence to take appropriate account of such credit as is being afforded for the time served. It is also possible, although anecdotally it appears to be resorted to in practice less frequently, for a sentencing judge to nominate an appropriate sentence in principle before then deducting an appropriate portion of it to reflect credit for time actually served on remand.
117. A potential difficulty arises however if the request must be construed as extending not just to the defendant receiving, either in whole or in part, a pro-rata deduction or allowance in respect of time actually served in custody on remand, but rather that whatever allowance is made should be based on time "deemed" to have been served, rather than actual time served, to take account of a prisoner's presumptive entitlement to standard remission (in accordance with the Irish statutory scheme as set out in the Prison Rules 2007 made under s. 35 of the Prisons Act 2007).
118. Professor Thomas O'Malley in Sentencing Law and Practice (3rd edn, Round Hall 2016) highlights that Irish courts do generally acknowledge that credit for time served on remand should in principle take account of possible remission. He states, at para 5-54:
"Irish courts ... generally acknowledge that a given period of time spent on remand should translate into a somewhat longer period for the purpose of sentence, because of the sentenced prisoners presumptive entitlement to standard remission."
119. The logic, in part, behind this is that if a convicted and sentenced person who spent no time on remand presumptively has the possibility (assuming his/her good behaviour while in prison, and no change in the law) of availing of standard remission in respect of their time in prison as a sentenced person, a similarly convicted and sentenced person who had spent time on remand, having been deprived of their liberty at a point where they were presumed to be innocent, and when they had not yet been convicted or sentenced, should be in no worse position and should also be able, at least presumptively, to avail of standard remission in respect of all periods, including pre-trial and pre-sentence periods, during which they were deprived of their liberty exclusively in connection to the offence(s) for which they were ultimately sentenced.
120. It should be further stated that there appears to us to be no reason in principle why a defendant might not agree, either expressly or by inference, to waive any claim to further credit above that which may potentially arise in respect of actual time served, i.e., further credit based on additional time "deemed" to have been served. Accordingly where, as frequently occurs in practice, a sentencing judge is expressly asked by a defendant, or his legal representative to backdate a sentence, or to afford a straight reduction to a sentence that would otherwise apply, in recognition of time served on remand, the sentencing judge may, depending on the precise terms and circumstances in which the request has been made, feel justified in treating the defendant as having so waived. If, however, the request was merely in terms that the court should ensure that the defendant receives due credit or allowance for time served on remand against any sentence to be imposed, without any suggestion that some specific deduction or allowance should be made at sentencing, it may be more difficult to justify an inference of waiver.
121. Where there has not been a waiver, either expressly or by inference, of a claim for credit for time served extending beyond time actually served, a sentencing judge cannot themselves make any specific allowance designed to take account both of time actually served and additional time deemed to have been served (so as to take account of a defendant's presumptive entitlement to standard remission). He/she cannot do so, for the following reasons. While sentence selection is exclusively a judicial function, sentence implementation is an executive function. Time and again, the Irish appellate courts have emphasised that courts impose sentences without regard to future remission stressing that remission is solely and exclusively a matter for the executive branch of government. See The People (DPP) v. Crowe [2010] 1 IR 129 and The People (DPP) v. Whelan [2003] 4 I.R 355. Remission is not something that a sentencing court can itself take account of. It is solely a matter for the executive, and a sentencing judge must be conscious of separation of powers issues. Further, it also requires to be emphasised that there is no right to remission. It must be earned, and can be lost due to bad conduct. The most that can be said is that a defendant may have a presumptive entitlement to standard remission. All of the above having been said, mere reference by a sentencing judge to the possibility of remission, or possible early release on other grounds, will not per se invalidate a sentence, providing the judge did not take account of the likely release date when determining the sentence.
122. Moreover, we do not suggest that a sentencing judge must pretend to be blind in respect of the possibility that there could be, in the circumstances of the case, an entitlement to some enhanced allowance over and above a pro-rata credit for time actually served on remand on account of a presumptive entitlement to standard remission. However, we emphasise again, he/she cannot calculate it, or make any concrete deduction or specific allowance in respect of it, because that would be to encroach on the executive's role in sentence implementation. The proper way to proceed, where a defendant seeks to have allowance made for time "deemed" to have been served over and above time actually served, is for the sentencing judge to determine the appropriate sentence without reference to time spent on remand, and to impose that sentence, but to also give an ancillary direction, to be included in the committal warrant, that the defendant should receive appropriate credit (if any is due), on account of time spent in custody by the defendant while he/she was on remand awaiting trial and/or sentencing exclusively in regard to the matter in question, from those authorities charged on behalf of the executive with implementing the sentence. With the benefit of such a direction to alert them to a potential entitlement to remission for time served on remand in an Irish prison on the part of a prisoner being committed to serve a sentence, the issue as to whether, during the relevant period, an entitlement in principle to remission pursuant to the Irish statutory scheme had in fact been earned, and moreover has not been lost by bad conduct, will be readily ascertainable by the relevant executive authorities, and applied by them when determining the prisoner's actual release date in the normal way.
Credit for time served on remand in a prison abroad
while awaiting extradition or rendition
123. The appellant was extradited to Ireland from Brazil on the basis of an ad hoc extradition arrangement, there being no formal extradition treaty between Ireland and Brazil. In the context of that ad hoc extradition arrangement the Department of Foreign Affairs, through its embassy in Brazil, represented in writing to the Brazilian authorities in a communication dated the 25th of January 2018, which has been exhibited before us, that:
"Irish authorities will take into account the entire period Mr Lynn has served out a sentence in Brazil due to the extradition process"
124. That this undertaking was given is at one level unremarkable. While crediting time in custody abroad awaiting extradition is not a requirement of the European Convention on Human Rights - see Zandbergs v. Sweden (2011) App. 71092/01, para 63, judges and legal practitioners experienced in extradition law will be aware that not infrequently it is agreed between States that it will be taken into account, and in some instances extradition treaties and rendition agreements, and/or the legislation implementing such treaties or agreements, expressly provide for this. See Nichols, Montgomery, and Knowles on The Law on Extradition and Mutual Assistance, (3rd edn, Oxford University Press, 2013) 12.101- 12.112.
125. An example can be found in s. 36(1) of the European Arrest Warrant Act 2003 (as amended), reflecting Article 26(1) of Framework Decision 2002/584/JHA. Section 36(1) provides:
"Where a person is surrendered to the State pursuant to a relevant arrest warrant, then any term of imprisonment that the person is required to serve by virtue of the imposition of a sentence by a court in the State (whether before or after the person's surrender) in respect of the offence specified in that relevant arrest warrant shall be reduced by an amount equal to any period of time spent by that person in custody or detention in the executing state in contemplation, or in consequence, of the execution of the relevant arrest warrant."
126. Further, while the European Convention on Extradition 1957 (and Part II of the Irish Extradition Act 1965 which very substantially mirrors the Convention's terms) is silent on the issue of crediting time served in prison in the requested state, Resolution 75(12) of the Committee of Ministers on the Practical Application of the European Convention on Extradition provides that:
"the time spent in detention by an individual solely for the purposes of extradition in the territory of the requested state, or state of transit, shall be taken into consideration when deciding the penalty involving deprivation of liberty or detention which he has to serve for the offence for which he was extradited."
127. Further, Recommendation 86(13) of the Committee of Ministers also provides that:
"... time spent in custody pending extradition should be deducted from the sentence in the same manner as time spent in custody pending trial ..."
128. Where there is no treaty or legislative provision expressly providing for time served in the requested state to be taken into account, assurances that that will happen are sometimes sought and provided inter partes or, as appears to have been the case here, volunteered by the requesting state.
129. The undertaking given in the appellant's case was on behalf of the "Irish authorities". However, it is unclear whether the envisaged authorities were the Irish judicial authorities, i.e., the sentencing judge at first instance and any appellate judges involved in a subsequent appeal or review in respect of the sentence imposed at first instance, on the one hand; or authorities forming part of the Irish executive branch of government with a role in implementing court ordered custodial sentences and in determining by what date a sentenced prisoner such as the appellant should in fact be released, on the other hand.
130. The fact that an undertaking, which in this instance is not provided for in either a treaty or in black letter law, was given to the Brazilian authorities by the Irish embassy in Brazil (representing the government of Ireland) in the terms in which it was given, strongly suggests that what was envisaged was that the promised taking into account would, if necessary, occur through executive action post imposition of sentence, rather than at sentencing. This is because due to the separation of powers provided for in the Constitution of Ireland, and unless expressly otherwise provided for in law, the executive cannot offer a representation to a third-party state that would be binding upon the Irish judiciary in a matter such as sentencing, a function which, as a facet of the administration of justice, is constitutionally reserved to the judiciary.
131. That having been said, in other jurisdictions where the line between functions reserved to the judiciary and those reserved to the executive may be less clearly defined, or there is perhaps not as bright a line as exists in this jurisdiction, sentencing judges routinely make the required allowance, if appropriate. See, for example, R v. Scalise and Rachel (1985) 7 Cr. App. R. (S) 395 and R v. Stone (1988) 10 Cr. App. R. (S) 322. While both of those cases were concerned with the fact that by statute in England and Wales the affording of credit for time spent in custody abroad awaiting extradition is discretionary, and further with whether it could be denied to a defendant who had "played the system" by unmeritoriously contesting his/her extradition, thereby prolonging the period spent in custody abroad; nevertheless both cases appear to contemplate that should a defendant in fact be entitled to some allowance for time spent in custody abroad, that allowance will be afforded by the sentencing judge at the defendant's sentencing (presumably, as here, either by backdating or direct deduction from the sentence that would otherwise be imposed).
132. Of course, while there is no question of an Irish sentencing judge being absolutely bound, in the sense of having their sentencing discretion fettered, by an undertaking such as that given to the Brazilian authorities by the Irish executive, there is no reason why either the prosecution or the defence, or both, at a sentencing hearing should not be entitled to apprise the sentencing judge of the undertaking given by the executive, and its terms, and request that the sentencer might in his/her discretion make any allowance that seems to him/her to be appropriate at that stage, i.e., at the sentencing. In that situation a judge would not be bound to do so, but might agree to do so out of deference to the expressed intentions of the executive. The judge's scope for action would, however, be limited by what is constitutionally permitted having regard to the separation of powers.
133. If a judge does decide to give credit at sentencing for time served abroad on remand while awaiting extradition, the extent of the credit to be afforded up to and including a pro-rata allowance, is a matter for the sentencing judge's discretion. The Irish courts have not previously had to consider the extent to which, in exercising that discretion, it can be taken into account that the appellant may, by his own conduct, have failed to mitigate his position, in a manner which was within his control, through launching and pursuing a challenge to his extradition which was ultimately found to be unmeritorious. We note that in the neighbouring jurisdiction of England and Wales the courts have taken the position that this factor can be taken into account, at least where the evidence suggests that the challenge ultimately found to be unmeritorious involved "playing the system", and something engaged in where there was no reasonable prospect of success in the challenge - see R v. Scalise and Rachel (1985) 7 Cr. App. R. (S) 395 and R v. Stone (1988) 10 Cr. App. R. (S) 322. We think this is a reasonable approach. In the present case, the respondent sought to make the case that the appellant could have mitigated his position by consenting to his extradition, whereas the appellant contends that it was his legal entitlement to challenge his extradition in Brazil, and that while he was ultimately unsuccessful, to have done so was nothing more than a reasonable exercise by him of his legal rights and that he should not be penalised for it. We will come back to this discrete aspect of the matter later in this judgment and consider how it was actually dealt with by the sentencing judge.
134. A further issue arises, however, because in this case, the appellant contends, not just that he was entitled to credit for time actually served while on remand in Brazil, but also that any allowance which was to be made for time served in Brazil should be on the basis of time deemed to have been served so as to take account of a presumptive entitlement to standard remission. (We leave to one side for the moment the further claim for extra allowance to take account of harsh prison conditions endured by him). To be fair to him, he did not suggest that the sentencing judge should himself make any such enhanced allowance, but rather that his sentence should be structured to require the executive to do this, by effectively directing the executive to afford him appropriate credit for time served including (by implication) any entitlement on his part to standard remission. He complains, in effect, that on account of the way in which his sentence was structured he was shut out from the possibility of receiving the benefit of standard remission to which he believes he was entitled.
135. We think that this aspect of the appellant's case is fundamentally misconceived and that the sentencing judge was not constrained to structure the sentence in the manner suggested by the appellant. While on the basis of the undertaking provided he could certainly make a case for some allowance, whether that might be made at sentencing or subsequently by the executive, up to and including allowance on a pro-rata basis for time actually served in prison in Brazil, we have been provided with no authority for the proposition that a person in the appellant's position can seek to rely on a presumptive entitlement to standard remission in respect of time served in a prison abroad. In the first place, the Prisons Act 2007 and the regulations made thereunder only apply within the territorial jurisdiction of this State, i.e., to prisoners incarcerated within a prison located within the State. Secondly, even if the statutory scheme were to apply, which we are satisfied it does not, there is no absolute entitlement to remission. As already stated, the scheme envisages that remission must be earned by good conduct, and may be forfeited due to bad conduct. Of necessity the Irish executive authorities charged with implementing the scheme would need to have been in a position to monitor and assess the conduct of the appellant according to their standards and expectations during the period in question, and they were simply not in any position to do that. Thirdly, the undertaking given by the Irish executive is utterly silent with respect to the affording of remission in respect of time served abroad. It merely commits the Irish authorities to "take into account the entire period Mr Lynn has served out a sentence in Brazil due to the extradition process." Fourthly, we are unaware of any case, either from this jurisdiction or elsewhere in which credit has been given for time "deemed" to have been served to cover a claim that somehow an entitlement to remission was earned, rather than time actually served, while the defendant was on remand in prison abroad pending extradition.
136. We should add at this point that, quite apart from any power it may have to grant standard remission to a qualifying prisoner under the aforementioned statutory scheme, and although it is not something of which account can be taken at sentencing, or which should influence sentencing, the executive branch of government ostensibly does have a power to grant special remission to any prisoner in an Irish jail, i.e., on an ad hoc basis, where it sees fit to do so.
137. In that regard, Article 13.6 of the Constitution provides:
"The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities."
138. Pursuant to this article, the powers of commutation and remission were conferred on the government under s. 23 of the Criminal Justice Act 1951, with further delegation to the Minister for Justice permitted by s. 23A which was inserted by s. 17 of the Criminal Justice (Miscellaneous Provisions) Act 1997. These sections, as amended, (and to the extent relevant) now read:
"23.—(1) Except in capital cases, the Government may commute or remit, in whole or in part, any punishment imposed by a Court exercising criminal jurisdiction, subject to such conditions as they may think proper.
(2) The Government may remit, in whole or in part, any forfeiture or disqualification imposed by a Court exercising criminal jurisdiction and restore or revive, in whole or in part, the subject of the forfeiture.
(3) Repealed.
(4) This section shall not affect any power conferred by law on other authorities."
(5) Not relevant
"23A.—(1) The Government, may by order, delegate to the Minister for Justice any power of the Government under section 23 of this Act.
(2) The Government may, by order, revoke an order under this section.".
139. Professor O'Malley, in his seminal text on sentencing law and practice (previously cited), suggests at paras 21-29 that special remission is seldom granted nowadays (for perhaps obvious reasons). Be that as it may, there would seem to be no inhibition on a person in the appellant's position from seeking to make a case to the Minister for Justice that special remission should be afforded to them. However, it is not a matter in respect of which a sentencing court, or an appellate court reviewing a sentence imposed at first instance, has any role. Special remission, unlike standard remission pursuant to the aforementioned statutory scheme, is not granted on the basis of deducting a specified percentage from a judicially imposed sentence of a determinate length. There is no requirement in law that there be a direct, or proportionate, or indeed any relationship between the length of an offender's sentence and the extent to which the Minister might be disposed to grant special remission in respect of it, if minded to do so. Accordingly, even at this remove, the appellant is not constrained by how the sentencing judge at first instance structured his sentence from seeking to make a case to the Minister for Justice, if he believes that a cogent case can indeed be made, that circumstances exist which would justify the Minister in remitting, by way of special remission, all or part of the sentence imposed by the sentencing judge. However, if the appellant opts to do so, that will be entirely a matter for the Minister and will not be a matter for the judicial branch of government at any level.
Taking Account of Harsh Prison Conditions endured while on Remand
140. This is something that can properly be taken into account at sentencing. Exposure to harsh prison conditions is not mitigatory in the strict sense of that term, in that it neither bears on the culpability of a defendant, nor bears in any direct way on the offending conduct or on the offender's attitude to it. However, the fact that an offender was so exposed and that he/she had to endure such conditions while remanded in custody abroad awaiting extradition represents a significant adversity in the life experience of the offender, which can be taken into account as a personal circumstance in the imposition of a sentence.
141. The extent of any judicial allowance to be made, absent any specification in that regard either in law, or in any applicable treaty or agreement binding on the sentencing court, is entirely a matter for the discretion of the judge following a consideration by him/her of such evidence on the subject as has been adduced before the sentencing court. The approach taken by other courts, particularly courts in other countries, may be considered for its persuasive influence, but is not binding on the sentencing judge. At the end of the day, the extent of any allowance to be made is a matter of discretion, such discretion to be exercised judicially and with due regard to the evidence.
142. The extent to which any allowance may be made at sentencing for harsh prison conditions endured while on remand will depend on the degree of hardship endured, and the duration of it. As a general proposition, we would suggest that the harsher the conditions and the greater the period during which they had to be endured, the greater the allowance that should be made for it. That said, a sentencing court may also take into account whether it was within the power of the offender to mitigate his/her position in either or both respects, and whether they might reasonably have been expected to act to do so.
143. As regards degree, the evidence appears to be all one way that the conditions that this appellant was exposed to while in prison in Brazil were harsh. It is noteworthy that the appellant contends, and the respondent does not appear to seriously dispute, that so harsh were the conditions that he had to endure, that they arguably amounted to inhuman or degrading treatment. If that is so, it is significant. Illustrative of this, Article 3 of the European Convention on Human Rights ("ECHR") (to which admittedly Brazil is not a party) absolutely forbids such treatment. If the appellant was indeed exposed to inhuman or degrading treatment it is indefensible at any level. That said, the Irish State had no control over the conditions in which the appellant was detained, and he was to some extent at least the author of his own misfortune by consciously relocating to Brazil, a country with which Ireland does not have an extradition treaty, from the European Union country in which he was then residing, i.e., Portugal, at a time when he was the subject of intense police investigation in Ireland into possible thefts, and (albeit that he had not yet been charged) could realistically have anticipated that in due course he would face a rendition request on foot of a European arrest warrant.
144. It is an entirely reasonable inference on the evidence in this case that his relocation to Brazil was expressly for the purpose of avoiding an anticipated future request for his rendition to Ireland from Portugal, notwithstanding asserting it to be his position that he was willing in principle to be interviewed outside of the State by gardaí. The sentencing judge observed during his sentencing remarks that, "[i]f I was to comment, I would say Mr Lynn was leading them a merry dance, that Mr Lynn had no intention ever, of being interviewed by the guards." We think that observation was entirely justified on the evidence. Be all of that as it may, his exposure to prison conditions in Brazil which were harsh to the degree suggested represents a very significant adversity to which he ought not to have been exposed, regardless of the extent to which he may have personally contributed to creating the circumstances in which he came to be so imprisoned. There is no doubt but that he was entitled to have the fact of his imprisonment in those conditions taken seriously in any consideration of what allowance should be made for it.
145. As regards duration, however, while the appellant would have had no control over the degree to which the prison conditions that he had to endure were harsh, he arguably did have some control over the duration of his exposure. When, following the appellant's relocation to Brazil, Ireland entered into the aforementioned ad hoc extradition arrangement with Brazil with a view to securing his extradition to face trial in Ireland on charges of theft, he could have consented to his extradition. It is always open to a person who is the subject of an extradition or rendition request to consent to their extradition or surrender, and thereby expedite their return. Instead, this appellant fully but unsuccessfully contested his extradition before the Brazilian courts and in doing so appealed all the way up to the Supreme Court of Brazil. That was his legal entitlement, but a consequence of opting to do so was that he remained on remand in prison in Brazil while so contesting his extradition and therefore, by his own choice, spent longer in custody in the conditions which he contends were harsh to the extent of amounting to inhuman and degrading treatment within the meaning of Article 3 ECHR, than he would have had to do if he had not contested his extradition. As previously referenced, the appellant contends that it was reasonable for him to do so, whereas the respondent contends that it was not. We are satisfied that the sentencing judge at first instance in this case would in principle have been entitled to take into account, in determining what allowance was to be made for the appellant's exposure to harsh prison conditions, the extent, if any, to which the appellant by his own conduct failed to mitigate his position, in a manner which was within his control, through launching and pursuing a challenge to his extradition which was ultimately found to be unmeritorious.
The Approach of the Sentencing Judge at First Instance
(i) Credit for time actually served abroad, including enhanced credit to take account of harsh conditions
146. The sentencing judge readily accepted that the appellant should receive credit, on at least a pro-rata basis, for time actually served by him in prison in Brazil, and further that some allowance should be made for the fact that he had endured harsh conditions while so imprisoned. He stated:
"In relation to his time in the Brazilian prison, I've no doubt that was onerous, and I've no doubt that was difficult, and I've no doubt that it was pretty inhuman, the conditions he had to endure, but I also, to some degree, he could have, I suppose, lessened his difficulties by agreeing to come home. I'm not saying that this could have been done immediately, but it seems to me, if he had wanted to end the ordeal, it was in his own hands, it seems to me. Now, obviously, I must take into account that he has spent four and a half years in a Brazilian prison. Obviously, he must be given credit for that in my final sentence. In relation to the inhuman conditions, I think I will aggregate up the four and a half years to seven and a half years, and in relation to the sentence I'm going to impose, I'm going to credit him with a seven-and-a-half-year prison term in relation to his stay in Brazil."
147. There was clearly no error in respect of affording him pro-rata credit for the circa four and a half years that he had actually spent in prison. There was also no error in principle in taking into account the harsh conditions that he had endured.
148. As to the extent of the allowance made, it seems that the sentencing judge considered whether it would be appropriate in determining upon the appropriate allowance to take account of the fact that the appellant might have mitigated his position by agreeing to come home, in effect consenting to his extradition. While there is discussion of this factor in the passage just quoted, the sentencing judgment is ultimately unclear as to whether he in fact did so, and if so whether in the circumstances of the case a discounting from any allowance to be made could in fact be justified. We think it is unnecessary to address these issues, as the allowance ultimately made (whether or not it was somewhat discounted for failure on the appellant's part to mitigate his position) was in our assessment generous, and quite adequate in any event, to sufficiently compensate the appellant for any hardship endured by him due to the prison conditions experienced by him. It is clear that in determining to afford an aggregate allowance of seven and a half years for time served in prison abroad against the headline sentence determined by him as appropriate to the appellant's case, he had appropriate regard to the evidence that had been adduced and to such case law as had been opened to him for its persuasive influence. The transcript of the sentencing hearing records a discussion between the sentencing judge and counsel about the fact that the German courts, and also the European Court of Human Rights had been prepared to make significant allowance to a compensate a person for harsh prison conditions endured on remand, although no specific caselaw in that regard was handed in. It is clear, however, that the sentencing judge accepted in principle the proposition being urged upon him. In assessing the level of allowance to actually afford the sentencing judge had specific evidence from the appellant, which was not controverted, and it is clear from the generous level of allowance that he actually afforded that he had full regard to it. We find no error of principle in his decision to make an allowance in the way in which he did or in respect of the level at which he made such allowance.
(ii) Criticism of how the allowance was catered for in sentence structuring
149. We are satisfied that there was no error on the part of the sentencing judge in concluding that it was appropriate for him to take account of the time spent on remand abroad in harsh conditions in the structuring of his sentence, and to do so by way of deduction from the headline sentence nominated by him. When it was canvassed with him that the way in which the sentencing judge had structured his sentence could deprive the appellant of remission in respect of time served in prison while on remand abroad, the sentencing judge made crystal clear that it had not been his intention to have regard to the possibility, and we consider that he was right not to do so. He made clear what was in fact his intention by stating, in reply to counsel, "Well, as I understand it, and the way I've structured it, ... I intended it that he will get remission on the five-and-a-half-year sentence." In circumstances where we have a clear view, as expressed earlier in this judgment, that any claim by the appellant to have been entitled to the equivalent of standard remission under the statutory scheme that applies in this jurisdiction in respect of time spent on remand abroad was, for the reasons we have outlined, misconceived, we find no error in how the sentencing judge structured his sentence and made allowance for time actually served and the fact that that time was served in harsh conditions.
(iii) Credit for time (105 days) served on remand in Ireland
150. The sentencing judge dealt with this in the following way:
"I'll give him credit for seven and a half years while in custody in Brazil, and therefore, it seems to me, the appropriate sentence for him in relation to his misbehaviour, is a term of imprisonment of five and a half years, and that's to be commenced on the 20th of December of last year. In deciding that sentence, I've taken into account the 105 days he has spent in custody while awaiting bail, and therefore, it seems to me, the sentence on all of the counts he's been found guilty of, is a term of imprisonment of five and a half, and that's to commence -- that's to be backdated to the 20th of December of last year."
151. In circumstances where, immediately post-imposition of sentence and before the court had risen, counsel for the appellant clarified for the benefit of the sentencing judge that his client hoped to avail of standard remission earned (implicitly pursuant to, or in the case of time served abroad on a basis analogous to, the statutory scheme) in respect of all time spent on remand (including the 105 days spent in prison in this jurisdiction), the sentencing judge would not have been entitled to infer a waiver on his part of the opportunity to make a case to the executive to be afforded credit by way of standard remission for time served on remand in this jurisdiction. Accordingly, it was an error on the part of the sentencing judge not to then change that part of his order giving credit for time served on remand in this jurisdiction by a combination of straight deduction and backdating measures. He ought simply to have imposed a sentence which itself contained no adjustment to take account of the 105 days, but which directed that in the calculation by the executive of the time to be served by the appellant, he should receive all due credit for such time as was served by him on remand in this jurisdiction against the sentence that the sentencing judge was then imposing. Accordingly, the sentence was inappropriately structured in so far as the taking into account of time spent on remand in this jurisdiction was concerned.
Grounds (4) & (5)
Criticisms of the Headline Sentence
152. The principal complaint in this regard is that the headline sentence of 16 years imprisonment nominated by the sentencing judge was excessive and disproportionate in all the circumstances, particularly having regard to comparators. Now it is true that the maximum potential sentence in respect of any count was 10 years imprisonment but the sentencing judge makes clear that in considering a headline sentence he was going to approach the matter globally, and clearly it was open to him, if necessary, to structure his ultimate sentence by having recourse to whatever combination of concurrent and consecutive sentences might be required to give him necessary scope. As it transpired, his ultimate post mitigation figure came in well below the 10 year maximum available for any individual count and it was not necessary for him to have recourse to consecutive sentencing. No complaint is made about him approaching the matter globally (although there is a complaint which we will separately address later in this judgment, that in how it was applied in this instance amounted to de facto consecutive sentencing), and for the avoidance of doubt, we think the trial judge's decision to approach the matter globally was unimpeachable.
153. The main complaint, as has already been alluded to, is that the court was asked to have regard to purported comparators, and failed to do so. The word "purported" is used because there were no written judgments, or even transcripts of sentencing remarks, in the cases principally relied upon as comparators. All that was available were newspaper or other media reports of sentencing hearings and concerning the sentences imposed in the cases in question. The cases in question were People (DPP) v. Thomas Byrne, a case which we understand was dealt with in the Circuit Court in 2013 by a different judge to the sentencing judge in the appellant's case; and the People (DPP) v. Harry Cassidy and others, dealt with by the Circuit Court again by a different judge to the sentencing judge in the appellant's case.
154. As it transpires, since the hearing of the appeal in the present case, this Court has given judgment on a sentence appeal in the case of People (DPP) v. Harry Cassidy [2025] IECA 98. We will consider the potential relevance of this Court's judgment in that case in any comparison exercise presently. However, we should allude to the fact that in that case we were also asked to take account of People (DPP) v. Thomas Byrne as a comparator, and in regard to that we said:
"123. The case of People (DPP) v. (Thomas) Byrne, Dublin Circuit Criminal Court, 2nd December 2013, had been brought to the Court's attention in written submissions filed in the Maguire case, necessitating brief reference to it in the judgment. There was no written judgment in the Byrne case, neither was there any transcript of the sentencing judge's remarks, merely newspaper accounts of the sentencing hearing and judgment which counsel on both sides accepted as being fair and accurate in so far as they went. Accordingly, we referenced it only very briefly in the Maguire judgment, stating at para 59:
"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."
124. We wish to emphasise, for the avoidance of doubt, that we have not considered it appropriate to treat the Byrne case as providing any meaningful assistance in the consideration of this appeal. Firstly, it was not referenced specifically by counsel on either side during the sentencing hearing or by the sentencing judge. Secondly, there is no written judgement in that case. Thirdly, we cautioned strongly in the Maguire case concerning the limited value of individual comparators as a tool in sentencing. At paragraphs 97 and 98 we said:
"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."
125. The only comment that we will make with regard to the Byrne case in the context of the present proceedings is that the exceptional nature of it, because of the scale of the fraud involved, and the losses suffered, was manifest from even the limited facts concerning it that were put before the Court in Maguire.
126. While the present case must also be regarded as being an exceptional case for similar reasons, that is insufficient per se to justify this Court in treating the Byrne case as being of any material assistance in assessing the propriety of either the headline sentence or the post-mitigation sentence in the present case. As was pointed out in Maguire, every case is different. The Byrne case is nothing more than a standalone individual comparator, in respect of which there is the most sparse and limited information. It is not in any way indicative of a trend in sentencing. It therefore cannot be regarded as being of useful assistance in the present case."
155. The comments just quoted seem to us to be equally apposite in the present case.
156. While there is a written appellate judgment in the Harry Cassidy case, we do not see it as being helpful to the appellant in the present case. In that case we upheld a sentence of 6 years and 10 months imprisonment imposed following deductions for mitigation from a headline sentence of 14 years imprisonment, in respect of a single count of conspiracy to defraud. The conduct in question involved the appellant's part in the perpetration, pursuant to an agreement to which he was a party, of numerous fraudulent transactions in running his investment firm resulting in nearly 200 investors suffering significant losses. The evidence was that some approximately €61 million had been misappropriated, of which approximately €41 million had been recovered.
157. On the issue of the headline sentence of 14 years imprisonment, this Court said:
"116. We have considered the proportionality of the headline sentence nominated, having regard to the evidence before the sentencing judge. We are satisfied that on any view of it the case merited a headline sentence well into double figures. Moreover, if the sui generis offence of conspiracy to defraud, contrary to common law had not been charged, and instead the appellant had faced sentencing for numerous individual instances of inchoate versions of offences contrary to either s. 4 or s. 6 of the Act of 2001, the judge would have been justified in having recourse to a combination of concurrent and consecutive sentencing that would have reached well into double figures in aggregate. The issue is as to whether the headline sentence of 14 years, determined upon by the sentencing judge, was proportionate.
117. As stated, we are satisfied that it was, and that she adequately explained why she came to that view. She pointed to the fact that the appellant was the dominant force in CHC and was the person in charge of this entire conspiracy to defraud. She said that he had breached every duty, and all trust placed in him, with very significant consequences. He was the originator of the plan, and she said that it would never have happened but for his say-so. In the sentencing judge's assessment, he was the principal party responsible for the wrongdoing and therefore she felt that a 14 year headline sentence was appropriate. We agree. In our assessment, any headline sentence of between twelve and a half years and fifteen years would have been within the sentencing judge's legitimate range of discretion in the circumstances of this case. We reiterate that in our view the gravity of this appellant's offending was truly egregious, and it required in our view the nomination of a headline sentence at a level sufficient to mark that, and to communicate the necessary degree of censure and of societal deprecation of the conduct concerned. We are satisfied that the headline sentence needed to be in the range that we have indicated to reflect that. The sentencing judge's figure was within that range."
158. There are only superficial similarities between the Harry Cassidy case and the present case, and for the reasons pointed out in the Maguire judgment quoted in the Cassidy case it is not generally helpful to compare individual cases, not least because a court engaged in such a comparison has no means of knowing how representative of general sentencing practice the comparator case may be. That having been said, it can now be said in respect of the recent judgment of this court in the Harry Cassidy case, that the sentence at first instance was upheld at appellate level, and for that reason we are prepared to have some regard to it. The sentencing judge at first instance, however, was entirely justified in not having regard to it in the absence of the availability of a written judgment.
159. The first thing to be said in any comparison between the Harry Cassidy case and the present case is that there were different offences charged and the context in which the offending was perpetrated was different. The present appellant was trained in the law, was a qualified solicitor, was an officer of the Court, and as such was a person expected to display the highest standards of probity and integrity in his dealings both with clients and with financial institutions. It is true that there was also an expectation of high standards on the part of Mr. Cassidy in his role as an investment banker, and the court placed some reliance on that. However, the duty owed is in our view even higher in the case of a solicitor. While the appellant contends that his offending was committed not in the course of acting as a solicitor but in the course of trading as a property developer, there is an air of unreality about this contention. He cannot seek to place Chinese walls around his activities as a solicitor on the one hand and as a property developer on the other hand, particularly in circumstances where his own firm, of which he was the principal and in overall charge, was acting for him in respect of the improper transactions in question. It is inconceivable in our view that he was not fully aware of what was happening in regard to each transaction. There is no doubt in our minds but that he traded on, and exploited, his position as a solicitor to facilitate the thefts of which he was convicted, effectively gambling (but with a high degree of confidence that the gamble would pay off, as in most cases it did) that because the persons he was dealing with knew he was a solicitor, and would assume integrity and probity on his part (those values being touchstones of the honourable profession of a solicitor to which he had been admitted), they might be laxer in their due diligence checks and not as rigorous in insisting upon, or on following up to ensure, compliance with standard requirements to be expected from loan applicants, than in the case of somebody else. As the sentencing judge in the present case justifiably and appositely put it:
"... from listening to the case, and listening to what's been said today, it seems to me, Mr Lynn spotted an opportunity in the undertaking system. It seems, he spotted that he controlled the undertakings through his office, and it seems, he spotted that the institutions were slow to check out whether properties were bought or charges actually registered. He spotted that by reason of his previous dealings with the banks, that the banks did not check. They assumed once the monies were given, the properties would be bought, and the charges would be registered. This wasn't the case in most of these cases, and he spotted this opportunity, and it seems, obviously, the monies were paid. I do accept that Mr Lynn probably thought he could repay the monies. I do accept that, but the monies, it seems, were diverted to other uses. Obviously, he indicated in his evidence that they were diverted to his projects abroad in relation to real estate.
It seems, he gave evidence to the effect that all of the banks involved gave him permission, and certain witnesses were called, and all of the witnesses, to a man and woman, deny that. It seems they all gave evidence to the effect that basically, they had no idea that Mr Lynn was going to redirect these monies, and it seems they were all of the view, all of the witnesses who gave evidence, that as far as they were concerned, that the monies were advanced to purchase the properties, as indicated in the application forms and in particular, in relation to the facility letters."
160. We are convinced that the sentencing judge in the present case was correct in approaching the sentencing on the basis that there was, in effect, a high level of premeditation in terms of what was done. He accepted that Mr. Lynn probably thought that he could repay the monies. That may have been so, but it did not mitigate his culpability. On the contrary it displays arrogance and hubris, traces of which are evident even to this day in the way in which the appellant has met this case, for example the implied suggestion in submissions to the court below that because the victims were institutions rather than individuals who may have been insured against theft and fraud the harm done by him was somehow less significant. It was suggested by the appellant's counsel in exchanges with the sentencing judge that if it was insurance companies that ultimately suffered the losses, it was "as a function of the risk of business that they're in", as though that in some way rendered the fact of such losses being suffered through theft less momentous. The thefts in this case were very substantial, and were perpetrated cynically, knowingly, intentionally and in breach of the standards of conduct expected of the appellant. The appellant's culpability was aggravated by the breaches of trust involved in how he dealt with the banks. Moreover, it was, as the sentencing judge recognised, aggravating that he brought the solicitors' profession into disrepute. While there was some argument in the course of the appeal hearing before us as to whether to say that is double counting, in circumstances where the appellant has already been struck off the roll of solicitors and has therefore been punished separately for having brought his profession into disrepute, we are satisfied that it is nonetheless a legitimate factor to take into account as an aggravating circumstance that such conduct occurred in the context of committing specific crimes, particularly in circumstances where he effectively leveraged his status as a solicitor to facilitate him in committing those crimes.
161. While the culpability of the defendant in the Cassidy case was also very high, indeed his offending was properly described as having been egregious, it is clear from the evidence in the present case that the appellant's conduct was every bit as egregious, if not more so. In both cases, there were double digit millions of euros involved. The sum was somewhat greater in the Cassidy case than in this appellant's case but given the exceptional scale of the losses in both that is not a very significant distinguishing feature, nor does it influence in any significant way the overall assessment of culpability. In both cases numerous victims were left with very substantial losses. While it is true that in the appellant's case the losses were for the most part sustained by several financial institutions rather than by a large number of individuals, somebody was going to have to carry the burden of those losses, whether the financial institution in question or its insurer, and ultimately that would be the ordinary customer of the institution or insurer concerned. The length of time over which the offending conduct extended was broadly comparable in both cases.
162. In the Cassidy case, the Court of Appeal felt that the sentencing judge's legitimate scope for action in terms of the nomination of a headline sentence was, in the circumstances of that case, to nominate a headline sentence in the range between 12 ½ years and 15 years. In the present case the sentencing judge nominated a heading sentence only marginally above that range. No two cases are the same and the sentencing judge in the present case was not dealing with the same facts as was the sentencing judge in the Cassidy case, albeit that there were some similarities between the two cases. We have carefully considered the circumstances of the present case, and we are not persuaded that the sentencing judge in this case erred in the level at which he fixed the headline sentence. Cassidy is an individual case which is not indicative of any trend in sentencing. Given that up to 15 years might have been nominated as an appropriate headline sentence in Cassidy's case, and 16 years was nominated as a headline sentence in the present case, the degree of difference is not such as to warrant this court's intervention in our view. We are satisfied that it would have been within the sentencing judge's margin of appreciation to set a headline sentence at 16 years in the circumstances of this case.
163. We do not consider that the case of Hawkins, which was referred to in submissions, provides any meaningful assistance this court, or that it could provide any assistance to the judge in the court below. We do not think that further elaboration is necessary in circumstances where it is readily distinguishable from the present case on its facts and in terms of the scale of the offending involved.
164. For the avoidance of doubt, we are satisfied that the trial judge did not treat the appellant's culpability as specifically aggravated on account of the evidence given at trial by Mr. Kinsella and Ms. McAlinden, respectively, in so far as such evidence was disputed by the appellant and such disputes were not resolved by any explicit jury finding. However, the sentencing court did have uncontroversial background evidence that Statements of Affairs submitted to lending institutions by the appellant were false in what they represented. Moreover, it also had uncontroversial background evidence that purported solicitors' undertakings to lenders provided on the appellant's behalf by his own firm were not honoured. The sentencing judge was fully entitled to have regard to that evidence.
165. In so far as it is suggested that the sentencing judge failed to take account of the absence of certain potential aggravating factors in considering the headline sentence, we reject this criticism as being untenable. The fact that the sentencing judge might not have factored into his decision on where to locate the headline sentence in this case that hypothetically the appellant's culpability might have been even worse had he done certain other things, in addition to what he actually did, does not undermine the sentencing judge's decision on where to locate the headline sentence.
166. We find no error in the setting of the headline sentence.
Grounds (6), (7), (8) & (9)
Alleged De Facto Consecutive Sentencing and Issues Arising
167. The argument here can be dealt with relatively briefly. The basic complaint is that because the maximum penalty for any individual count was 10 years imprisonment, the sentencing judge was not entitled to start above that figure, and that even though the ultimate sentences imposed were below 10 years there was de facto consecutive sentencing on account of the sentencing judge starting at a headline sentence of 16 years. We reject that argument. Where a judge is sentencing for multiple offences, involving multiple victims, there are a number of ways in which he/she can structure their sentences. It is well established that they can sentence globally, or for individual offences, but in doing so have recourse, if required, to concurrent and/or consecutive sentences. Some of the possibilities in that regard were discussed by this court both in the People (DPP) v. Casey and Casey [2019] IECA 121 and People (DPP) v. M.C. [2021] IECA 319.
168. We are completely satisfied, as already stated, that it is not significant that the sentencing judge went above the statutory maximum potential penalty in setting a headline sentence, in circumstances where there were multiple offences of the same type on the indictment and the sentencing judge had decided to take a global approach. Moreover, it was a sufficient explanation for the sentencing judge to state that he had decided to sentence on a global basis. It was not necessary for him to elaborate further as to why he was going to structure his sentence in the way that he in fact did. The adoption of a global approach to all of the offending conduct was an option that was legitimately open to him on the law. As long as the ultimate post mitigation sentences were within the statutorily available sentence range, there was nothing wrong with that. The same end could have been achieved by having recourse, quite legitimately in the circumstances of this case, to a combination of concurrent and consecutive sentencing. It was not necessary for the sentencing judge to do that, as it happened. It was possible having regard to the extent of the discount he was prepared to afford to the appellant from the headline sentence to impose post mitigation sentences within the statutory range. That enabled him to make all sentences concurrent. There was nothing wrong with his global approach to sentencing in our view and we therefore dismiss these grounds of appeal.
169. While concern was expressed in ground no. 8 that there might be difficulty in the event of a partially successful appeal, i.e., that the sentence on some counts would be interfered with but not the sentences on other counts, there was no reality to this ground in the context of the appeal as actually run. No case was made for interference on some counts but not others. The self-same points apply to each and every count. Either the overall global approach taken was wrong or it was not wrong. We are satisfied that it was not wrong.
170. As to ground no. 9, in circumstances where all of the sentences imposed were concurrent the totality principle was not engaged. We therefore reject ground 9.
Grounds (10), (11), (12), (13) & (14)
Criticisms of the Extent of Mitigation Afforded
171. We have already dealt with the allowances made for time spent on remand while in prison abroad, and for the harsh conditions endured, and have determined that an appropriate allowance was made for those factors. Over and above that, however, the appellant was entitled to a discount for other mitigating factors arising in his case. Regrettably, the single biggest potential mitigating factor that he might have availed of was not in fact available to him because he fought the case and did not plead guilty. He was not to be penalised for contesting the case, and there is no reason to believe that the sentencing judge did so. Indeed, in fairness to him, he does not make that case. It is, however, a factor that the sentencing judge's scope for discounting for mitigation, over and above taking account of time spent in custody abroad and the conditions associated with that, was significantly curtailed by the fact that he could not avail of the substantial credit that goes with pleading guilty.
172. Nevertheless, the sentencing judge did discount by 3 years from the headline sentence of 16 years which he had nominated to reflect such mitigation as was available in addition to the allowances being made for time served abroad. In that regard the sentencing judge alluded specifically to the fact that he had no previous criminal record, and to "the reference" (unspecified, but which we take to be a possible reference to positive things stated concerning him in Ms. Bríd Murphy's affidavit and also in the affidavit of the Brazilian lawyer who acted for him) which had emphasised that "he has many, many good points". While the sentencing judge did not specifically reference the medical and social work reports submitted, we have no reason to believe that he was not alive to their contents or that he failed to take them into account having regard to the generosity of the discount afforded. To have discounted by 3 years for lack of previous convictions, and having good references, alone would have been excessive. This is particularly so in circumstances where, while it is true that he had no previous convictions, the court was not dealing with once off offending but rather with a course of persistent and egregious offending committed over several years. We have often said this in the context of sexual offending. It is frequently the case that a sexual offender falls to be sentenced in circumstances where he has no previous convictions, but that cuts very little ice where he has perpetrated serious crimes against vulnerable victims over a protracted period. The same principles apply here. Where there has been protracted offending involving multiple victims only very modest credit can be afforded for the absence of previous convictions/previous good character. Moreover, given the gravity of the offending conduct in this case the weight to be afforded to positive testimonials will again be modest.
173. We note that the appellant also complains that the sentence failed to take account of his potential for rehabilitation. We think that in circumstances where the appellant had fully contested the case and had at all stages displayed limited insight into the egregious nature of his crimes, and little acceptance of the level of his culpability, there was no evidential foundation that could have supported a partially suspended sentence in pursuit of the objective of rehabilitation. There was no finding of sincere remorse. This was a case which, on the evidence, required prioritisation of the sentencing objectives of retribution and deterrence. We therefore find no error on the part of the sentencing judge in how he approached the appellant's sentencing from the perspective of sentencing objectives.
174. In circumstances where a discount of some 3 years was afforded, we are convinced that the sentencing judge must have taken into account more than the absence of convictions and the testimonial material referred to. He had before him the medical reports and social work report which were opened to him by the appellant's counsel in the plea in mitigation, and it is reasonably to be inferred that he took account of those. It would have been better if he had expressly referenced them in his sentencing remarks, but his failure to do so is not sufficient in and of itself to justify this court in interfering with what appears on its face to have been an appropriate discount for the level of mitigation available to this appellant. Accordingly, we also dismiss these grounds of appeal, which express criticism as to the level of mitigation afforded.
Ground (15)
Alleged breach of recognised principles of sentencing
resulting in sentence which was too severe
175. This is in effect a rolled up or catch-all plea. However, we have not identified any basis, beyond that identified in paragraph 151 above (relating to our criticism of the manner in which credit was afforded for time served on remand in an Irish prison) for believing that there was a breach of recognised sentencing principles. Overall, the sentencing judge dealt with this difficult case conscientiously and carefully, and with due regard to the law, and we are not aware of any breach of sentencing principles by him beyond the single issue that we have alluded to.
Conclusion
176. In circumstances where we have identified a discrete error in respect of how credit for time served on remand in an Irish prison was treated, it is necessary we believe to allow the appeal on that account. We will therefore quash the sentence imposed by the court below and to proceed to resentence the appellant.
Re-sentencing
177. Taking our lead from the court below, we will again take a global approach to all of the offending conduct. For the purpose of the resentencing exercise, we will again, in the context of that approach, nominate a headline sentence of 16 years as being applicable. While we consider that it would be open to us to nominate an even higher headline sentence and still be within our legitimate range of discretion in this particular case, we will not do so in circumstances where the DPP has not sought to criticise the headline sentence imposed at first instance and has not brought an undue leniency appeal.
178. We will again discount by three years from the headline sentence so nominated to reflect mitigating circumstances other than time served on remand in Brazil and the conditions in which it may have been served.
179. In regard to the issue of credit for time served, we note that the period of 105 days amounting to time served on remand in prison in Ireland, represents a little over three calendar months. We will therefore reduce the discount afforded by the court below for time spent on remand, (including the allowance made for harsh conditions in regard to so much of it as was served on remand abroad) by three months. Accordingly, insofar as the court below discounted by 7 ½ years (seven years and six months) for these factors, we will discount only by 7 ¼ years (seven years and three months) in respect of them. The total discount therefore to be applied to the headline sentence of 16 years is 10 ¼ years (ten years and three months) leaving a net post mitigation sentence of 5 ¾ years (five years and nine months).
180. The same sentence of 5 ¾ years (five years and nine months) is being imposed on each of the 10 counts in respect of which the appellant was convicted, and each sentence is to run concurrently.
181. Once again, the sentence in each case is to date from the 20th of December 2023, as provided for by the court below. In addition, this court will direct that in the calculation by the executive of the time to be served by the appellant, he should receive all credit lawfully due to him for such time as was served by him on remand in any prison in this jurisdiction exclusively in respect of those offences for which he is now being re-sentenced by this Court.