THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.
Record No.: 221/2015
The People at the suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment (ex tempore) of the Court delivered on 8th July 2016 by Mr. Justice Mahon
1. The appellant was sentenced on 31st July 2015 at Dublin Circuit Criminal Court to a number of terms of imprisonment, each of three years, on various counts, such sentences to be served concurrently. This is the appellant’s appeal against those sentences.
2. The appellant pleaded guilty on 9th June 2015 to a number of offences, namely:-
(i) Theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
(ii) Falsifying a document with intent contrary to s. 10 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
(iii) Making a false instrument with intent contrary to s. 25 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
(iv) Using a false instrument with intent contrary to s. 26 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
(v) Theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
(vi) Theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
(vii) Falsifying a document with intent contrary to s. 10 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
(viii) Obtaining by deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
(ix) Theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
3. A number of other offences contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 were taken into consideration.
4. The appellant was a financial controller of Deutsche Bank Services Limited at the time of the commission of the offences. The offences date between July 2011 and January 2013. The appellant falsified company records which were submitted to the Companies Registration office and he submitted documentation to AIB increasing the company credit card limit from €5,000 to €20,000. He diverted company funds amounting to €283,740 to a Pay Pal account, and ultimately to his own personal Permanent TSB account. The total loss to Deutsche Bank was €283,000.
5. The fraudulent activity was unearthed in an internal investigation in Deutsche Bank following which the gardaí became involved. The appellant made admissions to the gardaí and was fully co-operative with them in their investigation. He has no previous convictions.
6. The appellant is married with a five year old child. He suffers from depression for which he has received and continues to receive, medical treatment since 2003. His career was in the financial / I.T. sector, and this has been effectively ended because of his conviction on these offences.
Grounds of appeal
7. Five grounds of appeal are submitted on behalf of the appellant. They are:-
(i) The learned sentencing judge placed undue weight on what he identified as the aggravating factors, in particularly the breach of trust element.
(ii) The learned sentencing judge failed to afford appropriate weight to the efforts undertaken by the appellant to establish himself in a new business enterprise in circumstances where it was specifically referenced by the learned sentencing judge that avenues of employment relative to his qualifications were not longer available to him.
(iii) The learned sentencing judge failed to accord sufficient weight to the mitigating factors put forward on behalf of the appellant.
(iv) The learned sentencing judge failed to accord appropriate weight to the appellant’s psychiatric history.
(v) The learned sentencing judge imposed a sentence which was excessive in all the circumstances and was not in accordance with the parameters which would be appropriate for this type of offence.
8. The appellant’s counsel, Mr. Gageby S.C., emphasised at the hearing of the appeal a criticism of the failure to suspend a portion of the sentence imposed
9. In his sentencing judgment, the learned sentencing judge emphasised the appellant’s position of authority within Deutsche Bank. He noted that the appellant had breached that trust in stealing a significant sum of money from his employer. The learned sentencing judge concluded his sentencing judgment in the following terms:-
“I have been asked by his counsel, Mr. Gageby, to consider a non custodial option in this cases by reason of the effects the situation has had on Mr. Moran, as well as his good record, his co-operation and basically, that he would be unlikely to re-offend in the future. Unfortunately for Mr. Moran, I can(not) accept that submission. He stole large amounts of monies from his employer while he was in a position of trust. He was the financial controller and therefore it seems that he must undergo a reasonably substantial term of imprisonment. I think, on all the counts that he has pleaded to, I am going to impose upon him a custodial sentence of three years in the matter. It is very serious, what Mr. Moran did, in the position he was in.”
10. The learned sentencing judge also remarked that as a result of the appellant’s convictions, he had rendered himself unemployable in his chosen career, as work in that area is effectively closed to a person with a conviction for dishonesty. He also specifically, in the same context, noted the appellant’s lack of previous convictions and his low risk of re-offending.
11. When dealing with first time offenders, as the appellant is, courts are generally reluctant to impose immediate custodial sentences, and frequently do not do so. This is in the interests of rehabilitation and therefore very much in the public interest. First time offenders are often deemed unlikely to re-offend in the future, as again is the case with the appellant.
12. The exception to this general approach are those cases where the offence is particularly serious and / or where the victim impact is significant.
13. Some emphasis has been placed by Mr. Gageby on the failure of the learned sentencing judge to suspend a portion of the sentences. The option of doing so does not appear to have been considered by him, notwithstanding the plea of guilty, the lack of any previous conviction and the low risk of re-offending.
14. The court is satisfied that there was an error of principle to this limited extent. While the three year headline sentences were within the range of sentences available to the learned sentencing judge for these offences, and were therefore appropriate, some portion of those sentences ought to have been suspended for the reasons already indicated, particularly, the plea of guilty and the fact that the appellant was a first time offender and unlikely to re-offend, in the interests of incentivising rehabilitation.
15. The court has been referred to its recent decision in DPP v. Walsh [2016] IECA 74. In that case, the appellant defrauded his employer, Canada Life, to the extent of €215,000 by fabricating insurance policies. Having allowed his appeal, the sentence from this court was two years and six months, with the final ten months suspended. There are striking similarities as between the facts of that case and the facts in this case. A significant distinction however between the two, is that the amount involved in this appeal is approximately 25% greater than was involved in Walsh.
16. The court will therefore quash the sentence imposed in the court below and will proceed to re-sentence the appellant as of today. In so doing it will take account of the mitigating factors as already identified, the further submissions made to the court, and the updated reports made available today. The sentence now imposed will be one of three years imprisonment with the final ten months suspended for two years, on condition that the appellant enter into a bond in the usual terms.
