Birmingham J.
Sheehan J.
Mahon J.Appeal No.: 190/15
Between
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment (ex tempore) of the Court delivered on 26th February 2016 by Mr. Justice Mahon
1. The appellant pleaded guilty on 26th June 2015 to seventy five counts of theft contrary to s. 26 of the Criminal Justice (Theft and Fraud Offences) Act 2001 at Dublin Circuit Criminal Court.
2. He had earlier signed pleas of guilty in the District Court. He was sentenced in respect of count number 1 to a term of two years and six months on 29th June 2015. The remaining seventy four counts were taken into consideration.
3. This is an appeal against sentence.
4. The appellant was working as a self employed agent selling life insurance policies for Canada Life. He fabricated new policies in order to obtain commission from the company over a period of time between August 2010 to November 2011. In order to conceal the false nature of the new policies, the appellant set up direct debit payments from the accounts of genuine existing policy holders. In those instances where the genuine existing policy holders queried the payment being taken from their accounts such payments were refunded to them from the appellant’s own resources.
5. The approximate loss to Canada Life was €215,000. None of the customers in question ultimately lost their money.
6. The appellant made admissions at an early stage and was deemed by the investigating officer, Sgt. Walsh, to have been “very co-operative”. His explanation for committing the offences related to personal financial difficulty experienced by him in the construction of a family home for himself and his then partner.
7. When the fraud was initially discovered by Canada Life in November 2011, the appellant proposed to repay the money. He was unable to do so, whereupon Canada Life then reported the matter to the gardaí in March 2012. His relationship with his then partner collapsed as a result of the fraud, and its attendant publicity.
8. The appellant’s grounds of appeal can be summarised as follows:-
(a) Insufficient weight was attached by the learned sentencing judge to the appellant’s significant co-operation in the investigation of the matter, his plea of guilty, and the assistance provided by him in the course of that investigation.
(b) The learned sentencing judge failed to have sufficient regard to the fact that the appellant had no previous convictions, was unlikely to re-offend, and that the offences had the hallmark of being once off.
(c) The sentence imposed offended against the principle of proportionality.
9. In relation to the mitigating factors, the learned sentencing judge stated in the course of his judgment:-
“Now, when confronted, he made full admissions, and that is to his credit; he has no record whatsoever; and it seems that it is a one off fall from grace. I can accept, and it seems it is unlikely that Mr. Walsh will re-appear before these courts. He has pleaded guilty and he has very, very good mitigation.”
10. The learned sentencing judge identified the aggravating factors as a breach of trust as between the appellant and Canada Life, and the manner and the extent to which he abused his customers.
11. Having imposed the sentence of two and a half years imprisonment, the learned sentencing judge was asked by counsel for the appellant if he would consider suspending a portion of that sentence. The learned sentencing judge declined to do so, stating:-
“I am very cognisant of the assistance and I am very cognisant of his very, very good mitigation, and I am very cognisant that Mr. Walsh is a very good community man, and he has made contributions, but I thought about suspending part of the sentence, but no, if I was going to suspend part of it, I would give him a longer sentence. I do not think there is any need to place Mr. Walsh under a suspensory sentence. I think it is unlikely that he will come back before this court. I am imposing this sentence substantially for punishment in this case, and to some degree… lesser degree, for deterrents, but punishment. This man abused his position and stole a huge amount of money over a long period of time..”
12. Paramount in the submissions made by counsel for the appellant is the criticism that the learned sentencing judge did not attach proper or sufficient weight to the fact that the appellant’s early plea of guilty (he signed a plea of guilty in the District Court), and his immediate co-operation avoided the necessity and cost of what was likely to have been a complex and lengthy trial, as is commonly the case with fraudulent crime. Such was the extent of this position being taken at a very early stage by the appellant, that the preparation of a Book of Evidence was unnecessary. It is contended that there is significant public benefit when such an approach is taken in this type of case, and that is important that this be fully recognised by the courts, and that it be acknowledged in the sentence structure, and that this was not done, or is not evident that it was done, in this case.
13. It was also suggested by counsel for the appellant that a decision to suspend the entire or most of the two and a half year sentence would not have constituted an error of principle.
14. The Court has considered its very recent decision in DPP v. Martin Reilly, delivered on 19th February 2016. That case also concerned serious fraudulent activity by a tied agent of Canada Life. The accused in that case received a sentence of four and a half years, and this was upheld by this court. The facts in both cases are however quite different in many important respects. In Reilly the loss involved was close to €1m. and the fraudulent activity was undertaken over a number of years in order to feed a serious gambling addiction. The targets of the fraudulent activity were eighteen individuals, including one to the extent of €400,000. In reality, Mr. Reilly was running a sort of ponzi scheme.
15. The facts in this case pointed to a less serious fraud. The amount involved was approximately €200,000, the fraud was perpetrated over a relatively short period of time and was not primarily aimed at defrauding individuals. There is also an additional factor in this case which the court believes deserves mention. The appellant’s relationship with his then partner broke up following his exposure in relation to his involvement in this matter. He has suffered, and will suffer, enormous shame because he resides in a rural community. Also, as a young man, his employment prospects have been greatly undermined.
16. It is also apparently the case that Canada Life may have been prepared to overlook referring the matter to the gardaí (and with all the unfortunate consequences for the appellant which would then follow and which did follow when that was in fact done) if he had repaid almost €200,000 to them. He was unable to repay the money, and it is not suggested that he ever had the ability to do so.
17. The learned sentencing judge unfortunately did not identify the headline sentence (being the appropriate sentence before allowing for any reduction for mitigating factors) other than indicating that it was something higher than the two and a half year sentence actually imposed. It is therefore not possible for this court to identify the reductions allowed by him in respect of the mitigating factors. Such mitigating factors clearly existed and indeed were referred to by the learned sentencing judge. If the appropriate headline sentence was, say, three to three and a half years, the reduction actually allowed was in the order of six to twelve months.
18. It is the court’s view that there were strong mitigating factors in the case in addition to those already referred to, including the appellant’s lack of any previous convictions and his very low risk of re-offending, and which were recognised as being present by the learned trial judge. It is not unreasonable to consider this offence as being a one off, and out of character for the appellant. The court is concerned that the learned sentencing judge did not attach sufficient weight to these factors when taking together and to this extent erred in principle.
19. Having so found, it is therefore necessary to re-sentence the appellant as of today. It is clear that the appellant has done well and has used his time in prison sensibly, and he deserves credit for having so done.
20. The Court will suspend the final ten months of the two years and six month sentence, being one third of that sentence, for a period of two years from the date of his release, on condition that he enter into a bond in the sum of €100 to keep the peace and be of good behaviour.
