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THE COURT OF APPEAL
[2025] IECA 98
Record No: 136/2023
Edwards J.
Burns J.
MacGrath J.
Between/
THE PEOPLE (AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS)
Respondent
V
HARRY CASSIDY
Appellant
JUDGMENT of the Court delivered by Mr. Justice Edwards on the 7th day of April 2025.
Introduction
1. This is an appeal brought by Mr. Harry Cassidy (i.e., "the appellant") against the severity of the sentence imposed on him by the Dublin Circuit Criminal Court in respect of one count of conspiracy to defraud contrary to Common Law. On the 17th of January 2023 the appellant entered a guilty plea in respect of the said count. Following a period of adjournment, the sentencing hearing took place on the 21st of April 2023. This sentencing hearing dealt with the appellant and three of his four co-accused (who had also pleaded guilty to various offences) at the same time. Accordingly, the evidence received at the sentencing hearing was in respect of the activities of all four persons that were before the court for sentencing. The sentencing judge delivered her ruling on the 12th of May 2023, on which date she sentenced the appellant to a term of 6 years and 10 months imprisonment. No part of that custodial disposal was suspended.
2. By Notice of Appeal dated the 13th of May 2023, the appellant lodged an appeal against the severity of the said sentence. He filed grounds of appeal on the 29th of June 2023. These grounds of appeal make the following complaints:
"1. The learned sentencing Judge was invited by the Prosecution to fall into error, and did so err, in law and in principle, in determining that the headline sentence should exceed the maximum sentence for the relevant substantive offence underlying the conspiracy.
2. The learned sentencing Judge was invited by the Prosecution to fall into error, and did so err, in law and in principle, in imposing a headline sentence of 14 years in all the circumstances.
3. The learned sentencing Judge erred in law in failing to adequately set out the basis upon which she viewed the headline sentence of fourteen years imprisonment as appropriate in the circumstances of the case before her. The learned sentencing Judge erred in her assessment as to the range in which the offence arose. The learned sentencing Judge refused to allow the statutory maximum sentence for the relevant substantive underlying offence as set down by the legislature to dictate or influence her assessment as to the range in which this offence arose.
4. The learned sentencing Judge erred in law and in principle in relying upon facts and evidence adduced in the preliminary trial hearing requested by the Prosecution. The learned sentencing Judge further erred in law and in principle in relying upon facts and evidence adduced at the hearing of a co-accused in which the Defendant did not participate.
5. The learned sentencing Judge erred in law, in principle and in fact in failing to correctly account for the monetary losses actually accruing and further in failing to account for the on-going recovery of monies as part of the liquidation of Custom House Capital.
6. The learned sentencing Judge erred in law and in principle in failing to afford adequate weight to the evidence that the Appellant was motivated by an intention to preserve and protect monies invested in Custom House Capital.
7. The learned sentencing Judge erred in law and in principle in imposing a sentence which is disproportionate having regard to similar sentences imposed including those imposed on the Appellant's co-accused. The sentence imposed is excessive, disproportionate, overly punitive and oppressive in all the circumstances.
8. The learned sentencing Judge failed to balance adequately the mitigating factors against the aggravating factors. In particular the learned sentencing Judge attached too much weight to the Victim Impact Statements in imposing a headline sentence of 14 years".
Factual Background
3. At the sentencing hearing of the 21st of April 2023, a Detective Inspector Alan McGovern (otherwise, "D/Insp. McGovern") gave evidence in relation to the appellant's offending, and that of those co-accused who also faced sentencing, in the context of a wider conspiracy to defraud clients of an investment firm called Customs House Capital.
Procedural History
4. The appellant was charged, along with four co-accused, with conspiracy to defraud, contrary to common law, clients of Customs House Capital Limited by intentionally misleading them as to where and or how their assets had been invested between the 1st of October 2008 and the 15th of July 2011, a period of two years and nine months. By the time the appellant and his co-accused were charged, the appellant had relocated to Germany, where he was working as an English teacher. A European Arrest Warrant ("EAW") issued for the appellant on the 20th of March 2020. He was arrested in Germany on the 15th of May 2020 on foot of that EAW and an order for his surrender was made by a German court on the 25th of May 2020. As this was during pandemic restrictions his surrender did not take place immediately and he was permitted to remain at liberty pro temp. The appellant then returned voluntarily to this jurisdiction some time before the 26th of August 2020. He appeared in the District Court on that date, and he was then returned for trial to the Circuit Court on the 25th of September 2020. A date was set for the trial of this appellant, and his co-accused, for the 13th of January 2023.
5. The prosecution lodged a preliminary trial application on the 8th of July 2022 subsequent to the commencement of the Criminal Procedure Act 2021, which occurred on the 28th of February 2022 pursuant to S.I. No. 79 of 2022 - Criminal Procedure Act 2021 (Commencement) Order 2022, seeking a ruling on the admissibility of certain proposed evidence. The preliminary trial hearing was listed for the 7th of November 2022 and ran until the 16th of November 2022, with the court below delivering its ruling on the 19th of December 2022. Prior to the commencement of the preliminary trial hearing, two of the appellant's co-accused entered pleas in respect of certain of the counts on the indictment which pertained to them, which pleas were acceptable to the prosecution. Another co-accused pleaded guilty to a charge at a later stage.
6. The case against the appellant was listed for trial on the 13th of January 2023, although it did not commence on that day, but rather a few days later. On the 17th of January 2023, and prior to the swearing of a jury, the appellant pleaded guilty to the count of conspiracy to defraud, the sentence for which is the subject matter of this appeal.
Customs House Capital Limited
7. Customs House Capital Limited (or "CHC" for short) was a private company, limited by shares, that entered liquidation in 2011. It is a matter of public record, as reflected in the judgment of Finlay Geoghegan J in In re Custom House Capital Limited (in Liquidation) [2017] IEHC 484, that from 2007 CHC had been authorised under Regulation 11 of the European Communities (Markets in Financial Instruments) Regulations 2007 (S.I. 60 of 2007) as amended to operate as an investment firm. It was also approved pursuant to the Pensions Act 1990 (as amended) as a Personal Retirement Savings Accounts ("PRSA") provider and also as a Qualifying Fund Manager in relation to the provision of Approved Retirement Funds ("ARFs") and Approved Minimum Retirement Funds ("AMRFs"). Accordingly, and as D/Insp. McGovern stated at the sentencing hearing, the company's core activities related to asset management, portfolio and investment management and pensions advisory services.
8. CHC was established by the appellant and one of his co-accused, a Mr. John Mulholland, in 1997. The two men were equal shareholders in the company (holding 95% of the shares between them), with a minor shareholding of approximately 5% being held by another co-accused, a Mr. John Whyte. These three men sat on the Board of Directors of CHC; the appellant and Mr. Whyte as executive directors, and Mr. Mulholland as a non-executive director. The appellant was also the CEO of the company. A Mr. Paul Lavery, another co-accused, was head of finance or financial controller; and Ms. Ciara Kelleher, the final co-accused, was a senior portfolio manager who effectively reported to Mr. Whyte.
9. Among the many investments CHC bought into was a large portfolio of investment properties on the European mainland, comprising properties across France, Germany and Switzerland. These properties in question included shopping centres and mixed-use developments. CHC, against the background of the global financial crisis in 2008, entered into agreements to purchase further properties in Europe for very large amounts of money (said to be in the "millions of Euro"). The method by which these transactions took place was that a deposit of 10 or 20 percent was put down by CHC with agreements to complete the purchase in due course. Effectively, CHC would have the option, if it did not have funds in hands with which to complete a transaction, to either forfeit its deposit or to seek to raise the required additional funds by some legitimate means to enable it to complete the purchase. A point was reached in respect of various of these transactions where CHC was being pressed to complete in circumstances where it did not have sufficient funds in hands to enable them to do so, and for whatever reason the company either had not raised, or could not raise, legitimate additional funding for that purpose. Against that background, from 2008 CHC began to use client monies to meet its obligations under these purchase agreements, in many cases without the knowledge of or the authorisation of the clients in question.
Ms. Angela Mahon
10. The issue of the misuse of clients' funds became apparent to one of the employees of CHC, a Ms. Angela Mahon, towards the end of 2008. Ms. Mahon was a qualified accountant and had started working in CHC in May 2007. She had initially started in a project manager role in relation to co-ordinating and developing a new equity management system, and she reported directly to the appellant in this role. In November 2007 she took on a permanent role as head of operations and it was suggested sometime thereafter that she was to become the new head of finance and operations, which suggestion was made by the appellant. She described to gardaí how at a meeting in October 2008 she was told that there was a €11.7 million shortfall in respect of a stage payment in relation to a German investment property. Ms. Mahon told gardaí that the appellant, Mr. Lavery and Mr. Whyte were present at this October 2008 meeting, and she recounted that the appellant had stated that the shortfall arose as some of the equity raised was on deposit for other products i.e., that money had been taken in from clients with the intention that it should be applied towards a specific property investment or property development project on their behalf, and instead of being available to fund a stage payment due in respect of that, the money had been applied elsewhere. Ms. Mahon also described a separate shortfall in relation to a different account of some €6 million at that stage. Towards the end of October 2008, Ms. Mahon attended another meeting where the appellant and Mr. Whyte had appeared to identify funds from different accounts that would be used to meet this €11.7 million shortfall.
11. Ms. Mahon believed that the funds in question were first transferred to a Mezzanine bond and then to a client company savings account, and then onto a German investment. Ms. Mahon was concerned that CHC did not appear to have the authorisation to invest in this property in respect of all of the clients on the list that they had discussed. She was subsequently told by Mr. Whyte that CHC did not have the authorisation; and when she asked the appellant about this, she recalled him saying to her, "Live with me on it". This comment was made in the presence of Mr. Lavery. She confirmed to gardaí that Mr. Mulholland took her aside and spoke to her about this and had suggested that she was not experienced enough to realise that, as he put it, "sometimes commercial realities have to take precedence over integrity".
12. On foot of the concerns she had about the use of client monies, Ms. Mahon handed in her notice. In early 2009, after her notice period had elapsed, she left CHC. She then went to the Central Bank and informed them of her concerns about the investment activities of CHC, and in particular with the Mezzanine funding mechanism that was being used. Following this the Central Bank engaged with CHC and gave certain directions and put certain measures in place which remained in force until the date of commencement of the winding up of CHC. These included requiring the replacement of the then head of compliance at CHC, Mr. Lavery, and the appointment of an additional outside director to the board of the company. Notwithstanding such measures as were taken by the Central Bank, CHC continued to trade until it collapsed in the fourth quarter of 2011. On the 21st of October, 2011, the High Court made an order on the application of the Central Bank that CHC be wound up by the Court. Mr. Kieran Wallace of KPMG was appointed as the official liquidator of CHC.
13. A parallel criminal investigation into the activities of the appellant and his co-accused at CHC, in the period from 2008 onwards, led to the prosecutions which culminated in the imposition, in the appellant's case following his plea of guilt, of the sentence now under appeal. The evidence gathered to support the criminal prosecution was comprised predominantly of documents, including emails, harvested from the server of CHC; proposed testimonial evidence from former employees of CHC and other persons who could speak to what occurred, or aspects thereof; as well as evidence of interviews with the accused persons themselves.
The Unity System and "Reversing" Exercises on Client Accounts
14. CHC used a system called Unity to record where and how client monies had been invested; when such a record was made, the client concerned would then be issued with a valuation on their account, usually on a six-month basis. Evidence was given at the sentencing hearing that the purpose of these valuations was to tell the client where their monies were, whether they had made a profit or loss in the relevant six-month period, and also to send a request for fees due to CHC for its investment services during that six-month period. From 2008, a system was inaugurated whereby, when someone would attempt to access certain client account records on the CHC server, a note or pop-up message would be displayed on the relevant computer terminal directing the user as follows: "Please contact Paul Lavery or Harry Cassidy before any valuations are issued to the client".
15. It was the prosecution case that prior to the valuations being issued to the clients on these accounts, that the CHC computer records system was manipulated, and that money was moved back from a property fund, where it was actually invested (without client authorisation), to where it was supposed to be, namely invested to the credit of the client in question in (generally) a cash or savings account. The valuation statement would then be printed, with appropriate interest (fictitious though it was) being shown on the statement. This document would then be sent to the client, and it would purport to show the monies in the cash or savings or other fund where the client had been led to believe it had been invested. However, as soon as the valuation had issued to the client, the transaction which had temporarily moved the money from one location to another was reversed, and the client's money was returned to the property fund in which it had been actually invested without the client's authority.
16. Two witnesses, a Ms. Susan Fennell and a Ms. Michelle Donnelly, who were employees of CHC and were involved in the pop-up system, provided witness statements to the gardaí explaining what was happening within the company. Ms. Donnelly started working in CHC in 2005 as a property administrator. She subsequently moved to the finance department of the firm and then worked as an assistant accountant in 2007, under Mr. Lavery. She told gardaí that client valuations were issued and that subsequently queries came in from some clients to the company's client services team (which was headed by co-accused Mr. Whyte, with Ms. Kelleher as the next most senior person). These queries were then forwarded to Mr. Lavery. This precipitated a discussion between Mr. Lavery and the appellant, subsequent to which Mr. Lavery asked Ms. Donnelly to put the first of the notes or pop-ups onto the system. She told gardaí, "I entered a note onto the narrative of the Unity system. The note was to contact Harry [or] Paul before issuing valuations to any clients. That would include others as well as PRSAs". Ms. Donnelly stated that at that stage, some 40 clients were affected. She said that the explanation which she was given for this course of action was that "[i]nvestments were put through the system and the system couldn't properly deal with it. So that in order to issue valuations correctly, we needed to back out certain transactions before valuations could be run". Ms. Donnelly then described to gardaí the process of effectively deleting a transaction and then re-entering it after the valuation had been run. This was described in evidence as a "reversing exercise". In December 2010 Ms. Donnelly ceased to do this, citing her unhappiness with the explanations she was being provided with as to why she was performing this task. When she indicated to Mr. Lavery that she would no longer do it, he tasked another employee, Ms. Fennell, with performing it instead. Mr. Lavery was said to have told Ms. Donnelly, inter alia, that "there was nothing to worry about and that everything was withing (sic) the mandate of the client and the funds". She said that her instructions as to what to do on the system always came from Mr. Lavery.
17. Ms. Fennell started performing Ms. Donnelly's previous tasks in this regard in or around November or December 2010. She indicated to gardaí that she was suspicious and raised her concerns mainly with Mr. Whyte and Mr. Lavery. She described how Mr. Lavery would perform an accounting exercise to calculate the fictitious interest accruing to the client, which would then be added to the valuation which would be sent to them. Ms. Fennell described how this in effect misled the client as the interest had not actually been earned as the money had not actually been deposited in an account which would earn interest. When requests were made for the reversing exercise to be done to client accounts, emails would be sent by more junior members of staff, saying words to the effect of, "will you do your magic on this account?"
Discovery by Appian Asset Management
18. This activity went on for a period of approximately 2 years and 9 months, up until the summer of 2011. By then, a Mr. Brian Cahalin, who would have been a potentially significant prosecution witness had the trial proceeded, had been seeking to engage in certain respects with CHC personnel on behalf of his employer, a company called Appian Asset Management. There was an agreement in principle between CHC and Appian Asset Management to buy certain portions of the CHC portfolio of investments. Mr. Cahalin's job was to go into CHC and do an examination of their books and records in order to advise his own company as to whether they should go ahead with this transaction. While Mr. Cahalin initially obtained information he was requesting from CHC personnel, by July 2011 he was finding it difficult to get certain information, in particular in relation to certain accounts. He had a particular concern about a bond with which he was unfamiliar. His concern was that this bond and related reports suggested that millions of Euro that should have been invested in equities were actually invested in this bond. Mr. Cahalin met with Mr. Whyte who acknowledged that the relevant portfolio (i.e., the equities portfolio) had been sold down and that the funds had been placed with a German private bank. He (Mr. Whyte) further stated to Mr. Cahalin that the appellant had told him that CHC would collapse if this was not done.
19. At this point it should be stated that in the course of being cross-examined, D/Insp. McGovern agreed with counsel for the appellant that the misappropriation of client monies was for the purpose of trying to keep the company afloat, albeit that clients' monies had been taken and used without their knowledge. It was put to D/Insp. McGovern that people had stopped investing and that if "deals" into which CHC had entered did not go through, the company would have lost deposits paid on very large premises. The witness agreed that that was "potentially the case".
20. Returning to D/Insp. McGovern's evidence concerning Mr. Cahalin's report concerning his meeting with Mr. Whyte, Mr. Whyte was said to have further acknowledged to Mr. Cahalin that it should not have happened. Mr. Cahalin subsequently spoke with Ms. Donnelly who informed him that she was concerned about payments being made from client accounts that she felt were not correct. She then sent him an example by email, and Mr. Cahalin then became aware of the flag or pop-up on the accounts where the request was made not to issue valuations pending a discussion with either the appellant or Mr. Lavery. In a further meeting between Mr. Cahalin and Mr. Whyte, Mr. Whyte had described to Mr. Cahalin the process of how cash supposedly invested in savings accounts, but in fact invested in foreign properties, was shown on valuations after entries had been "cooked up".
21. On foot of these discoveries, representatives of Appian Asset Management went immediately to the Central Bank with their concerns. Mr. Whyte agreed to attend at the Central Bank with those representatives of Appian Asset Management to explain how clients' cash was being used by CHC to fund investments without their knowledge, and the process of concealment of this misuse of funds by the issuing of false valuation statements to CHC clients. He said that he had been aware of this practice for two years and had challenged the appellant on it.
Mr. Leslie Coulter
22. Before this practice ended in July 2011, a Mr. Leslie Coulter had been the head of compliance at CHC for a number of months, having replaced Mr. Lavery in that role at the insistence of the Central Bank. He described to gardaí actions on flagged accounts being carried out behind closed doors and being told by Mr. Whyte that he did not need to know about it. D/Insp McGovern stated that he had said that the appellant was "very good about telling you what you didn't need to know". He told gardaí that "when looking for answers from Harry Cassidy, you would never get the same answer twice"; and that the appellant would lose his temper when asked questions.
Central Bank Response
23. After Appian Asset Management went to CHC in July 2011, the Central Bank went to the High Court and requested that High Court inspectors be appointed to carry out an investigation into the activities of CHC. Two inspectors were duly appointed and in the course of the investigation which followed, evidence was uncovered which suggested that €56 million of client monies had been inappropriately transferred into property investments. As a result of these investigations, the Central Bank placed freezing orders on bank accounts held in the name of Custom House Capital Limited, and ultimately, using statutory powers available to them, petitioned for the winding up of CHC in October 2011.
The Liquidator
24. From October 2011, CHC had been in liquidation which liquidation was ongoing at the time of the appellant's sentencing in the court below. In 2020, the prosecution obtained information from Mr. Kieran Wallace of KPMG, the liquidator appointed to CHC. The information provided by Mr. Wallace was outlined in full to the court below at the sentencing hearing.
25. Mr. Wallace confirmed to gardaí that he was appointed as liquidator of CHC on foot of a court order dated the 21st of October 2011. He said that at the date of liquidation the company held and or managed assets with a value of approximately €253.2 million for and on behalf of its clients across a range of bank accounts, broker accounts, equity funds, and property investments. There were 2,701 clients of the firm at the date of liquidation, with 3,310 client accounts. Of these, 2,110 were pension accounts. It was therefore the case that a majority of the clients of CHC were pension investors. At the time Mr. Wallace provided information to the prosecution, it was estimated that approximately €61 million in client assets was misappropriated from clients, and that only approximately €30 million was estimated to be recoverable. Mr. Wallace stated that clients who suffered misappropriation were likely to recover less than 50% of the amounts misappropriated from them, and they would have to wait approximately 10 years for those recoveries. Mr. Wallace stated that as a consequence of the liquidation and the misappropriation and mismanagement that led to the liquidation, many of these clients suffered significant financial loss, as well as significant delays in recovery of the remaining client assets. He said that this had in turn led to considerable anxiety, anger and frustration for many who were at or were close to retirement, and were either dependent in whole or in part, or about to become dependent in whole or in part, on their client assets invested with CHC for their income.
26. Mr. Wallace said that the records of CHC, as at the date of liquidation, recorded a significant misappropriation from client assets. He stated that the way in which this misappropriation was done was at times clear and well recorded; and at times followed a complex web of transactions through a myriad of accounts, including those of special purpose vehicles incorporated outside this jurisdiction. Mr. Wallace stated to gardaí that these factors gave rise to a situation where considerable work was required to be carried out in the liquidation to facilitate the identification, recovery and distribution of client assets. This in turn necessitated two court applications, one in 2012 and the other in 2017, to determine the means by which client assets were to be reconciled, misappropriated assets were to be recovered and distributed, and how the costs of the work were to be met. This issue and complexity gave rise to considerable delays in investors receiving a distribution of their assets, with the majority of investors awaiting the distribution of the material proportion of their investments over nine years later. These issues also meant that until the necessary work to identify client assets and any misappropriation that may have occurred was completed, it was not possible for Mr. Wallace as administrator to certify the majority of claims made for compensation under the Investor Compensation Act 1990. Of the 2,692 clients who claimed compensation in the early stages of the liquidation, Mr. Wallace had only been in a position to provide an interim certificate for 574 claims prior to the completion in 2019 of the necessary work required following court directions issued in 2017.
27. Mr. Wallace then provided an example to illustrate the impact of the misappropriation on a personal level for an individual client:
"Client A was 66 years of age at the date of liquidation and had been advised [by] the company in March 2011, prior to liquidation, that it held assets with a value of €993,620 on behalf of his personal pension fund across a mix of cash, equity and property investments. As of the date of liquidation, the company records indicate that only €151,211 in assets were held on behalf of the client. The client received €78,267 by way of a first distribution of a segregated broker and bank account assets in May 2012. The client was paid compensation under the Investor Compensation Act of €20,000 in May 2013. The client then received a further distribution of €32,932 from pooled investment assets in November 2019 following completion of the work directed by the Court in 2017. This client is now 75 years of age and of the total investment held by the company on his behalf of €993,620, he has to date received only €131,199 inclusive of compensation, i.e. he has only received 13 percent of the amount invested with the company at the date of liquidation".
28. Mr. Wallace said that throughout the liquidation clients of CHC had written to him raising their concerns in relation to the impact on them of the liquidation of the company. He outlined that among the difficulties of which clients had spoken in their correspondence were severe cash flow difficulties, having to sell the family home to raise funds to supplement their pension income, and personal difficulties including marital issues. Mr. Wallace stated:
"[t]here is no doubt that the misappropriate (sic) of client assets which led to the liquidation of the company has led to significant adverse impacts for clients. The manner in which the misappropriation occurred as well as the fact that the company had very limited assets of its own at the time of liquidation exacerbated the difficulties in winding up the company in returning client assets to them. While this process is nearing its conclusion, many clients have had to endure a significant proportion of their retirement without the benefit of their hard-earned savings they had invested in good faith in CHC".
29. In March 2023, Mr. Wallace provided a further update in relation to the ongoing liquidation and misappropriated client monies. He stated that of the approximately €61 million that had been misappropriated, approximately €41 million had been recovered. Clients had received approximately €39 million of this recovered sum, which Mr. Wallace said represented a recovery of about 64% of the funds misappropriated from them. He further said that it was estimated that the funds due to be distributed to investors would be returned by the end of 2023, and that the liquidation process would likely continue for a further 24 months. Mr Wallace had repeated that, "the issues and complexity in terms of the manner in which the company was organised gave rise to considerable delays in investors receiving the distribution of their assets and the majority of investors awaiting the distribution of the material proportion of their investments still exists nine years later."
30. Under re-examination, D/Insp. McGovern confirmed that this was the position as of the most recent statement taken from Mr. Wallace, which was dated the 12th of April 2023.
Interviews with the appellant
31. The appellant was interviewed by An Garda Síochána on four occasions in 2012. Other than the provision of some general background information, nothing of evidential value arose from these interviews.
Victim Impact Statements
32. 197 victim impact statements were tendered to the court below, of which five were read aloud for illustrative purposes at the sentencing hearing, either by the victims themselves (or a representative, if they were deceased), or by prosecuting counsel on their behalf. The sentencing judge was provided with copies of all 197 statements, however, and confirmed in her sentencing remarks that she had read them all (albeit being of the belief that she had 202 such statements due to inadvertently double counting the five statements that were read at the hearing. Nothing turns on this minor computational error, however.)
33. On account of their multiplicity and combined length, it is not proposed to rehearse these statements ad longum. For present purposes, it suffices to provide an outline or overview of the type(s) of impact which the misappropriation of monies by CHC had on clients whose accounts were affected. A common theme or trend among the victim impact statements read at the sentencing hearing, and many of the others, was that they detailed the impact on individuals who had pension accounts with CHC. They spoke of the devastating impact which the activities of CHC had on their savings, how they have struggled to get redress, compensation or recoup their losses in the years since CHC's activities came to light, and the stress and fear which they have endured owing to the resultant financial instability and uncertainty which the activities of CHC vis-á-vis their accounts sowed. In some cases, the victims were deceased, and family members had tendered a victim impact statement on behalf of their late relatives. Some victims were of advanced age, and some were not of good health. The victims spoke of the breach of the trust and of the complete faith which they had reposed in CHC, and some referred to particular assurances which certain representatives of CHC, including the appellant, had offered to them regarding the safety of their investment, which assurances proved to be false. Some victims lost their homes, others lost their businesses. In one particular case where a victim's family business was affected, such that it had to be liquidated, some 16 employees were let go and lucrative business contracts were lost. The loss of life savings which some victims had spent decades building, and further the denial of certain future plans owing to these losses, were also referred to in the victim impact statements. The victims spoke of how they have been afflicted with stress, depression, sleeping difficulties, anxiety, and other health-related issues owing to the losses which they had suffered. In some cases, victims cited the stress suffered by them in consequence of the offending behaviour as causing or exacerbating serious health conditions, and in some cases the death of relatives who had invested with CHC was attributed by surviving family members to the stress caused by the misappropriation of their late relatives' monies. Some victims spoke of the impact on personal and marital relationships due to stress resulting from difficult financial situations in which they were put by the offending behaviour. The totality of the evidence adduced before the court below suggested that the adverse impact which the activities of the appellant and his co-accused had on the lives of those clients whose accounts were affected was far-reaching and lasting.
Appellant's Personal Circumstances
34. The appellant's background and training was in banking and financial services, and he had been one of the founding members of, and remained at all material times a principal shareholder in, CHC. He was also the CEO of CHC. During the period within which the offending occurred, the appellant was aged between 52 and 55 years, his date of birth being the 5th of July 1965. When he was sentenced in the court below, he was aged 57 years. At the time of sentencing, he lived in rented accommodation having sold his own house due to financial difficulties. He had owned the CHC business premises along with Mr. Mulholland, the sale of which was forced by the banks to cover their financial obligations at the time. The appellant had been declared bankrupt after the collapse of CHC, but had exited bankruptcy by the date of sentencing, and since then had been working as a teacher of English to foreign language students.
35. It was suggested to D/Insp. McGovern in cross-examination that the appellant had been served with an eviction order in respect of the premises in which he and his wife were then living, but he had no knowledge of this. D/Insp. McGovern confirmed that the appellant had been disqualified from acting as a director for 15 years in company law proceedings. D/Insp. McGovern was not in a position to dispute or disagree with counsel for the appellant's suggestion that his client continued to teach English as a foreign language online. The Garda witness accepted that his annual income from teaching was in the region of €24,000. When asked by counsel whether it is well accepted that teaching English as a foreign language is not the best paid of professions, the Garda witness replied, "Well, compared to what he was on as CEO of CHC, it's a significant reduction in income".
36. The court below was furnished with copies of a report from the Park Clinic. It should be stated that this Court has not had sight of this report, but from the text of the transcript it appears that the report suggested that the appellant had been found to have a suspicious lesion in a certain area of his body, necessitating the carrying out of a biopsy. No final diagnosis in respect of this had been made as of the date of the sentencing hearing in the court below, but it was submitted in the course of the plea in mitigation made on the appellant's behalf, that this development was a matter of considerable worry to him and his wife.
37. A number of testimonials from pupils to whom the appellant had taught English since exiting bankruptcy were tendered to the court below.
38. In relation to the appellant's plea which, it should be recalled, was entered on the 17th of January 2023 prior to the swearing of a jury, his counsel submitted that while it was not a plea made at the first available opportunity, it was a plea of guilty in what, as counsel put it, "would have been a terribly lengthy case". In that regard, it was submitted that the plea had saved the prosecution considerable time and expense and indeed had spared considerable court time.
39. Counsel asked the sentencing judge to note the distinction between a person who sets out to deceive others for his own enrichment and a person who deceives others for the purposes of keeping a company afloat. It was urged upon the sentencing judge that "this is not a case where a man has enriched himself by his behaviour; he has, in fact, beggared himself."
40. Counsel submitted that the appellant's 15-year disqualification from acting as a company director was a matter of humiliation for his client, and he stated that his client deeply regretted his involvement, and had expressed significant remorse for those who had suffered as a result of his wrongdoing and apologised to them in relation to that.
Sentencing Judge's Remarks
41. After a number of weeks' adjournment, the sentencing judge delivered her ruling on sentence on the 12th of May 2023.
42. In respect of the offending behaviour in the case generally, the sentencing judge remarked:
"The offending in this case was most egregious. This was, and I'm talking now, first of all, about the conspiracy accounts (sic). This was a highly organised, systematic, prolific plundering of client accounts; it was a gross abuse of trust, a gross abuse of fiduciary duties owed by all of the defendants. It involved the manufacturing of fictitious statements of account to clients, to mislead them. The vast bulk of persons who were seeking to protect their retirement, their old age and their pensions, the vast amount of the victim impact reports speak to the devastation wrought upon the lives of these blameless people who put their trust in Custom House Capital. The Court is struck by the repeated assertion of personal shame by the victims, who felt shame for having been duped. That is misplaced. The view of this court is that they were systematically deceived, in a sophisticated operation which went on, in terms of this indictment, for two years and nine months by persons who owed them fiduciary duties. The fact that these were, in the main, retirement funds is a particularly aggravating feature of this case, people having carefully put aside money to make provisions for their later years of life".
43. In relation to the appellant, the sentencing judge identified the following factors as aggravating his offending: that he was in overall control of the scheme, that he had devised it, that he implemented it, that he was the man in charge, and that there were significant breaches of fiduciary duties over a protracted period of time towards all of his clients. The extent of harm done was also relevant to any assessment of gravity and she noted the losses that were caused to the injured parties, the impact on their lives, their health and their happiness.
44. Mitigating factors identified by the sentencing judge as enduring to the appellant's benefit in sentencing included: that he had pleaded guilty (and albeit that the plea had been intimated close to the trial date it was a plea of value to the prosecution owing to the complexity of the case); that he was remorseful; that his circumstances were much reduced; his age; his health; the fact that he had no previous convictions; and the fact that a considerable period of time had passed where these matters had been hanging over him.
45. The sentencing judge noted that the offence of conspiracy to defraud is a common law offence which carries no fixed penalty. She noted that Prof. Thomas O'Malley in his treatise, Sentencing Law and Practice (3rd edn, Round Hall 2016) at para. 5-11 had commented that "a sentence for conspiracy should not ordinarily exceed that which is available for the substantive offence"; however, she further noted that Prof. O'Malley went on to comment in the same paragraph that "this is no more than a general principle and it has been recognised that in exceptional cases, a conviction for conspiracy may merit a sentence beyond the maximum for the substantive offence". The sentencing judge noted that the Director had nominated, as substantive offences for the purpose of the present sentencing exercise, theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (i.e., "the Act of 2001") and or making gain or causing loss by deception contrary to s. 6 of the same Act. She observed that if this was accepted, the maximum carceral penalty which would apply would therefore be either 10 years (i.e., that applicable to the substantive offence of theft) or 5 years (i.e., that applicable to the substantive offence of making gain or causing loss by deception).
46. It should be stated that in the course of submissions made at the sentencing hearing on the issue of maximum sentence, the sentencing court was referred by the Director to several passages of Prof. O'Malley's aforementioned work including paras. 5-10, 15-10 and 19-31, in support of a submission advanced by the Director to the effect that the sentencing court was at large in terms of being able to impose a fine and or imprisonment of which there is effectively no maximum, but that it should have regard to the underlying equivalence in terms of substantive statutory offences in assessing the scenario. In this case, as mentioned, the Director posited that the Court could consider the offences created by s. 4 and/or s. 6 of the Act of 2001 for this purpose. However, the Director had further submitted that if the sentencing court were to determine as a matter of fact that the conspiracy in this case was to commit multiple acts of either s. 4 theft or s. 6 deception, then the sentencing court should not consider itself to be bound by a maximum penalty applicable to the commission of a single instance of such statutory offending.
47. Counsel for the appellant had responded that where the misappropriation of monies which had occurred was committed with the intention of trying "to keep the boat afloat" and where there was no evidence of an intention on his client's part of making a gain for himself or for another, the substantive equivalent offence was s. 6 deception which carried a maximum penalty of 5 years imprisonment. He submitted that a sentence to be imposed by the sentencing judge should not therefore exceed 5 years.
48. Returning to the sentencing judge's ruling, in deciding on the issue of the applicable maximum she remarked:
"This court has carefully considered the offending in this case and is of the view that, in light of the scale of the offending, the number of injured parties, the duration of the offending over a period of two years and nine months, the multiple acts that would have been involved in this conspiracy, and the losses being 61 million euro, this court is entitled to part (sic) from maximum sentences outlined in either section 4 or section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 in regard to sentencing for the offence of conspiracy to defraud".
49. The sentencing judge then continued with her analysis, stating:
"[I]n relation to sentencing, this court has, of course, to have regard to the principles of punishment, deterrence and rehabilitation. This court must sentence not alone for the offence, but also the circumstances of the offender and this court will so do. This court is mindful of the fact that the defendants before the court are of previously unblemished record. The Court has to carefully consider the question of the imposition of custodial sentences, and the Court will say at the outset that it is of view that the threshold for the imposition of custodial sentence has been met in this case and these are matters which the Court has decided cannot be dealt with a noncustodial basis".
50. Having regard to the previously mentioned aggravating factors, the sentencing judge nominated 14 years' imprisonment as the headline sentence, remarking:
"Harry Cassidy, as founder, director, shareholder of 47.5% of the company, and chief executive officer, was the dominant force in Customs House Capital. He was the person in charge of this entire conspiracy to defraud. He breached every duty and all trust placed in him, with the consequences previously outlined arising as a direct result of his actions. He is, in the view of this court, the principal party, the originator of the plan, it would never have happened in that company but for his say-so. He is the principal party responsible for the wrongdoing in this matter".
51. To take account of the mitigation in the appellant's case, the sentencing judge deducted 50% from the headline sentence, and further afforded credit to him for time already served in custody in Germany prior to his return in Ireland. Accordingly, the appellant was sentenced to 6 years and 10 months' imprisonment, to date from the 21st of May 2023. No element of the carceral term imposed was suspended.
Submissions of the Parties
Re: Ground of Appeal No 1
52. It was submitted by the appellant in relation to Ground 1 that the sentencing judge erred in determining a headline sentence which exceeded the maximum for the underlying substantive offence, making gain or causing loss by deception contrary to s. 6 of the Act of 2001, rather than theft contrary to s. 4 of the Act of 2001. Essentially the arguments which were canvassed before the sentencing judge at first instance were reiterated before the Court of Appeal.
53. Further, it was suggested that the prosecution had mistakenly described the underlying factual pattern as involving multiple acts of the same offence, thereby inviting the court to fall into error by conflating conspiracy to defraud with the substantive offence of theft or making gain or causing loss by deception. This was said to ignore the definition of conspiracy which concerns itself with the agreement to act or not act, rather than the act itself.
54. Yet further, it was suggested the court erred in the manner in which it considered it appropriate to exceed the maximum sentences of any substantive offence. It was submitted that the default position is as set out by O'Malley - a sentence for conspiracy should not ordinarily exceed that which is available for the substantive offence. Only where there is some degree of exceptionality should the court depart from this 'ordinary' approach. It was submitted that the sentencing judge had erroneously failed to properly consider the issue of exceptionality and had indeed conflated the concepts of aggravation and exceptionality. It was said that she had failed to identify any exceptionality that actually applied. The specific factors noted by the sentencing judge in justifying the departure from the maximum were, it was submitted, relevant to any sentencing for fraud and for any instance of conspiracy to defraud. It was said that she failed to provide any reasons which are not readily identifiable in any instance of conspiracy to defraud and as such there was no basis to assert that the appellant's case was exceptional such that it warranted a headline sentence of 14 years.
55. In response, counsel for the Director reprised the arguments that had been made before the court below and rejected any suggestion that the sentencing judge had erred in her approach.
Re: Grounds of Appeal No's 2 and 3
56. In these grounds the appellant contended that the sentencing judge had erred in nominating a headline sentence of 14 years in all the circumstances. It was complained (i) that she had failed to set out the basis for doing so; (ii) that she had erred in determining the applicable range of penalties, an essential first step in the nomination of a headline sentence; and (iii) that she had failed to identify the relevant underlying substantive offence in respect of the offence of conspiracy to defraud, and had allowed this (error) to influence her judgment.
57. In regard to the identification of a relevant underlying substantive offence, the appellant has referred us to The People (DPP) v. Maguire [2015] IECA 350 in which this court acknowledged the long-standing convention that a sentence for conspiracy to commit a common law offence where there is no statutory maximum sentence should not exceed penalty that would apply for the substantive offence. Further, it was pointed out that this Court had noted that the position is more complicated where there is no directly relevant substantive offense to provide guidance. It was submitted that in the Maguire case, the Court of Appeal had determined that the offence of conspiracy to defraud was inextricably linked to the other counts on the indictment in that case, each of which had carried a five-year maximum sentence, and that it was "sensible" in the circumstances to treat five years as being the maximum sentence for the conspiracy charge.
58. Once again, the argument that had been made to the court below to the effect that the appropriate underlying substantive offence to which the sentencing court should have regard in this case was s. 4 theft, rather than s. 6 deception, was reprised on the basis that the evidence had established that the appellant's intention at all times was never to make a gain for himself or to cause a loss, but rather "to keep the boat afloat".
59. It was submitted that the sentencing judge had erred in imposing a headline sentence of 14 years - 180% greater than the maximum sentence of five years applicable in the case of the relevant underlying offence of making gain or causing loss by deception contrary to s. 6 of the Act of 2001.
60. In reply, counsel for the respondent contended that the appellant's submission was legally erroneous. It was submitted that conspiracy to defraud is sui generis. There is no 'underlying offence' for conspiracy to defraud as there is with conspiracy to steal or conspiracy to deceive or conspiracy to rob. Conspiracy to defraud is a common law offence and as such it is punishable with such amount of fine or length of imprisonment as the court may determine. Thus, in reality, there is no maximum sentence and the sentencing judge is at large in terms of the sentence to be imposed.
61. It was acknowledged that it has been recognised in very general terms, the sentence imposed for conspiracy to commit a statutory offence should not exceed that which is available for the substantive statutory offence. However, as noted in O'Malley on Sentencing Law and Practice, 3rd edn (previously cited) at para 5.11:
"this is no more than a general principle, and it has been recognised that in exceptional cases a conviction for conspiracy may merit a sentence beyond the maximum for the substantive offence. When several people collaborate in planning to commit a crime, they may create a greater risk to individuals or the public at large than one person who actually commits the crime in question."
62. It was submitted that the purpose of charging the sui generis offence of conspiracy to defraud was to capture widespread an ongoing criminal behaviour rather than prosecuting multiple individual counts relating to each deceptive transaction that took place. In the present case the breadth and complexity of the fraud, coupled with the vast numbers of transactions involved and exceptional number of victims meant that a single conspiracy to defraud charge was appropriate to ensure that all the offending behaviour was captured. The evidence demonstrated that it was not multiple agreements that were being prosecuted but an overall agreement to defraud multiple parties on multiple dates over years. As such, the evidence disclosed a large number of underlying substantive offences rather than one single offence of theft or deception or forgery.
63. Counsel for the Director submitted that in ruling as she did the sentencing judge carefully considered all of the evidence that had been adduced, and the factors relating to each individual accused including the appellant. The particular aggravating factors in respect of the case and the appellant were that:
• this was a large-scale fraud that lasted for two years and nine months;
• the appellant was the CEO of the company and the author of the fraudulent scheme;
• the appellant was a significant shareholder in CHC rather than an employee;
• €61 million had been misappropriated of which just €39 million (not allowing for 12 years interest, inflation or lost opportunity cost) had been recovered by the date of the sentencing hearing;
• the breaches of fiduciary duty and breaches of trust involved;
• the appalling impact on the lives of very large number of investors.
64. It was submitted that in the circumstances, and in light of these factors, there had been no error in principle in the nomination of a headline sentence of 14 years imprisonment.
Re: Ground of Appeal No 4
65. In this ground of appeal, the appellant complained that the sentencing judge had erred in relying upon facts and evidence adduced in the preliminary trial hearing. While it was acknowledged in written submissions that the sentencing judge was careful to primarily rely on matters of evidence properly before the court by way of the evidence of D/Insp. McGovern it was submitted that "the scale and volume of the case - in circumstances where multiple co-accused were involved at different points in time -resulted in the judge falling into error and ultimately relying upon assumptions which were not properly evidence before her".
66. This was elaborated upon in paragraph 59 of the appellant's written submissions, although the point was not pressed at the oral hearing of this appeal, that:
"In reaching the conclusion that the appellant was in overall control of the 'scheme' and that he 'devised' it, the learned sentencing judge was relying on an impression formed from evidence adduced in the preliminary trial hearing in respect of admissibility which took place in November 2022, and in respect of the evidence advanced by and on behalf of the co-accused. Such evidence included emails between the co-accused and the appellant which were considered in the context of the preliminary trial application as to admissibility of electronic evidence."
67. It was further suggested that characterisations of the appellant by a co-accused, a Mr. Lavery, which were not properly in evidence before the court, to the effect that he had worked in a toxic environment and that he was not a strong personality able to stand up to the appellant, appeared to have influenced the sentencing judge's impression of the character of the appellant. It was submitted that for the sentencing judge to have allowed herself to be so influenced was erroneous. Again, this was not a point which was pressed at the oral hearing.
68. In response, counsel for the respondent rejected any suggestion that the sentencing judge had been inappropriately influenced by extraneous material. He submitted that there was ample evidence before the court to justify the findings that the appellant was in overall control of the scheme, that he had devised it, implemented it and was the man in charge. There had been evidence before the court that CHC had been set up by the appellant and John Mulholland (who by the time of the fraud was a non-executive director and who ultimately pleaded to a lesser offence); that they were equal shareholders with roughly 95% of the company divided between them; that the appellant was a director of the company and that he was the chief executive officer. It was submitted that on foot of this evidence the sentencing judge did not err in assessing the nature and extent of the appellant's role and involvement. While she was obliged to sentence all the accused's separately for their role in the offence charged, she was also required in doing so to assess their individual culpability in respect of the offence and had appropriately done so.
Re: Ground of Appeal No 5
69. In this ground of appeal, the appellant complains that the sentencing judge failed to correctly account for the monetary losses actually accruing, or to take account of ongoing efforts to recover monies as part of the liquidation of CHC.
70. The complaint was premised on the fact that defence counsel had put it to D/Insp. McGovern in cross-examination that a Barrister representing the liquidator, Mr. Wallace, had been quoted in a newspaper published in November 2022 as saying that the majority of the misappropriated funds would be recovered by the end of the following year, yielding the following response from the witness, and supplementary questions and answers:
A. Yes. It's -- I haven't seen that document that you are referring to. But it is a complicated process.
Q. It's complicated, yes. And so, it appears that there is still property which has yet to be sold, as we understand it?
A. That could well be the case. The liquidation is still an ongoing process.
Q. Yes. In fact, Horwath Bastow I think they're called, were appointed by the liquidator to deal with the property which was in and during the course of the liquidation?
A. Okay.
Q. Do you –
A. Yes.
Q. They have a recent flyer or brochure indicating that there is £80 million worth of property. Can you say whether that is still within the CHC liquidation, or has it been hived off? It's not clear to us?
A. No, I cannot say and I cannot really answer that question. That's a matter for the liquidator to be able to deal with.
Q. It is of course, yes. We are just trying to address the question of losses. But anyway, you know nothing about the barrister saying that the majority of misappropriated funds would be recovered by the end of next year -- that would be the end of 2023?
A. No. I'm not involved in that liquidation process.
Q. That's when it's hoped that the liquidation would end?
A. I'm relying on what you are reading out there. I don't have that document or I didn't see that newspaper article.
71. It was complained that the sentencing judge failed to recognise or acknowledge in her sentencing remarks that the liquidation process was still ongoing and that the majority of the misappropriated funds would be returned to the client concerned. It was contended that the sentencing judge mistakenly believed that the clients would receive just 64% of the invested funds. It was further submitted that the scale of the offending behaviour and the mistaken figure of €61 million in losses clearly influenced the sentencing judge's reasoning in relation to the sentence imposed on the appellant. It was suggested that the sentencing judge placed undue weight on mistakenly perceived losses suffered.
72. In response, counsel for the Director makes the point that there was simply no evidence before the court that "the majority of misappropriated funds would be returned to clients." The two statements of the liquidator, Mr. Kieran Wallace of KPMG, including the most up to date one of March 2023, had been read into evidence by D/Insp. McGovern, and that evidence was correctly summarised by the sentencing judge in her sentencing. What Mr. Wallace had stated was that "clients have now received circa €39 million, representing a recovery of circa 64% of the amounts misappropriated from them. It is estimated that funds due to be distributed to investors will be returned by the end of 2023." This was accurately appreciated by the sentencing judge.
73. Counsel for the Director further submitted that in any event the appellant's complaint ignores 12 years of inflation, a lost opportunity cost of the clients' funds not being available to them for 12 years or the human cost of the unavailability of the funds to the customer for this 12-year period. The point was made that, indeed, some of CHC's customers had died during this period.
Re: Ground of Appeal No 6
74. In this ground of appeal, the appellant complains that the sentencing judge erred in failing to afford adequate weight to the evidence that the appellant was motivated by an intention to preserve and protect monies invested in CHC, and had not acted for personal gain. It was submitted that this was a relevant mitigating factor which ought to have been appropriately taken into account.
75. In support of this argument the court was referred to People (DPP) v. Clarkin (unreported, Court of Criminal Appeal, 10 February 2003), referenced in O'Malley, Sentencing Law and Practice, 3rd edn, (previously cited), at para [19.30].
76. In response, counsel for the respondent points out that the sentencing judge referenced the appellant's motivation specifically in the course of her sentencing remarks where she stated, "the court was told that his misappropriation was to try and keep the company afloat, albeit that the client's money was taken and used. The deposits would have been lost if the deals hadn't gone through at this difficult financial time".
77. It was contended, however, that the sentencing judge was entitled to look at the method by which this claimed noble motivation was executed. She had, commented:
"the offending in this case was most egregious ... This was a highly organised, systematic, prolific plundering of client accounts; it was a gross abuse of trust, a gross abuse of fiduciary duties owed by all of the defendants. It involved the manufacturing of fictitious statements of account to clients, to mislead them."
78. In the Director's submission, this was an entirely fair assessment of the reality of the case.
Re: Ground of Appeal No 7
79. The complaint advanced in this ground of appeal was that the sentence imposed by the court below was disproportionate having regard to sentences imposed on the appellant's co-accused. John Whyte had received a sentence of four years' imprisonment, and Paul Lavery had received a sentence of three years imprisonment, for the same offences committed by the appellant i.e., conspiracy to defraud. John Mulholland had pleaded guilty to a different offence of neglect on the part of a director of a corporate body and received a sentence of one years' imprisonment. It was acknowledged that a custodial sentence was inevitable in the appellant's case, but it was contended that such was the severity of the sentence actually imposed that its effect was crushing.
80. The court was referred to the People (DPP) v. Durcan [2017] IECA 3; and People (DPP) v. Doherty [2003] 4 JIC 2903, as being illustrative of the principle that, if an immediate custodial sentence is necessary, that sentence should be as short as possible consistent only with the duty to protect the interests of the public and to punish and deter the criminal.
81. It was submitted that in the present case the need for specific deterrence was slight and the achievement of rehabilitation in the broad sense was not required. It was complained that the sentencing judge's reasoning failed to adequately explain how she arrived at her sentence figure. It was suggested that her sentence may be out of line with sentences imposed in other fraud cases.
82. It was submitted that fraud cases are no different to any other cases of dishonesty. Comparators indicate that fraud cases tend to exhibit certain common features. Very often they are committed by persons with no previous convictions, and who are otherwise of good character. In the great majority of cases, as here, the accused has pleaded guilty. The risk of reoffending, as here, is often low. In relatively few cases has offending conduct been cynically committed with clear criminal intent or motivated exclusively by greed. It was submitted that the offending conduct in this case was not committed with clear criminal intent or motivated exclusively by greed. Rather, the appellant was motivated to try to keep the business afloat. It was accepted that there was a high level of premeditation planning.
83. It was contended that the sentencing judge had not approached the appellant's sentencing with the required degree of rigour. It is suggested that no comparator was considered or reasoning acknowledged as to how the court reached the headline sentence. The policy considerations at issue were not expressly articulated. It was suggested that there was little need for specific deterrence, and that the requirements of general deterrence and censure were capable of being satisfied by the fact of the imposition of a custodial sentence rather than by the length of it.
84. It was submitted that the case, albeit very serious, was certainly not in the egregious category that would have merited its location in the highest range. As regards the harm done, it was contended that the losses to the individual victims were somewhat ameliorated by compensation paid and furthermore the liquidation process was still ongoing. Restitution had and would continue to be made.
85. It was submitted that the case could have been dealt with by a sentence less than that imposed by the sentencing judge, and that the sentencing judge had erred in failing to impose a lesser sentence.
86. The court was referred to the following comparators in support of this ground: People (DPP) v. Maguire (Siobhán) [2018] IECA 310; People (DPP) v. Maguire (Aoife) [2015] IECA 350; People (DPP) v. Drumm (unreported, Circuit Criminal Court, His Honour Judge O'Connor J, June 2018) (Irish Times, 21 June 2018); People (DPP) v. McAteer (unreported, Circuit Criminal Court, His Honour Judge Nolan, July 2016) (Irish Times, 29 July 2016); People (DPP) v. Hughes [2012] IECCA 85; People (DPP) v. Begley [2013] 2 IR 188; People (DPP) v. Breffni O'Brien [2015] IECA 304; People (DPP) v. Walsh [2016] IECA 74; People (DPP) v. Durcan [2017] IECA 3; People (DPP) v. Murray [2012] IECCA 60; People (DPP) v. Hawkins [2015] IECCA 36. The majority of these were in fact reviewed comprehensively in this Court's judgment in People (DPP) v. Maguire (Siobhán).
87. In conclusion on this ground counsel for the appellant submitted that while the offending conduct merited a substantial custodial sentence notwithstanding the mitigating circumstances that existed, the appellant's advanced age and state of health required to be taken into account in circumstances where the case was being made that prison would be more onerous for him than for a younger person, and where there was at least some evidence of physical deterioration on his part it was submitted that the appellant's age and state of health are such as would make it unduly oppressive and unjust that he should have to serve a substantial prison sentence. While the overall sentence in this case was not 'crushingly' disproportionate in a dramatic or hyperbolic sense, it was such in the sense of being more than the circumstances of the appellant's case merited.
88. Moreover, it was said that the sentencing judge had inappropriately prioritised a 'just deserts' theory of retribution in the circumstances of the case.
89. In response, counsel for the Director points to the fact that the 14 year headline sentence that had been nominated by the sentencing judge was reduced by 50% to 7 years. In addition, this was further reduced to 6 years and ten months to take into account the period of time spent on remand in Germany. It was submitted that this reduction in sentence was exceptionally generous and more than took into account the mitigation available to the appellant, including his age and state of health. In that regard the plea of guilty had not been an early plea (albeit still of value), and one proffered only after important prosecution evidence had been ruled admissible in the pre-trial hearing. The appellant had made no admissions and could not be said to have assisted the investigation.
90. Addressing the differential between the co-accused, the point was made by counsel for the director that this differential was explained by the trial judge on the basis that they had differing levels of culpability. The two individuals who pleaded guilty to conspiracy to defraud, John White and Paul Lavery were effectively salaried employees (albeit that John Whyte had a small shareholding of 5%), and they also made significant admissions from the outset. Indeed, John Whyte had attended the central bank in 2011 for the purpose of explaining exactly how the fraud had been executed, and he had expressed contemporaneous remorse. They had also entered pleas of guilty prior to the preliminary hearing.
91. It was submitted on behalf of the Director that in light of the significant nature of the offending, the late guilty plea, and the impact on the victims, a sentence of seven years (before allowance for time served) was not oppressive, unjust or unduly severe and certainly not crushing. With reference to the comparators proffered, it was submitted that these were not particularly useful having regard to the fact that in each case there were very different factual circumstances, and they were mostly concerned with statutory offences with the maximum penalty fixed by statute. In contrast, the offence of conspiracy to defraud is sui generis, is not restricted by maximum penalty, and the superior courts have not yet had occasion to consider in a comprehensive way the sentencing parameters for such an offence.
Analysis & Decision
The Applicable Sentencing Range
92. It has long been understood that where a substantive offence exists in the criminal law, various inchoate versions of that offence may also be committed. In that regard the Shorter Oxford English Dictionary defines inchoate as something "just begun, incipient, rudimentary, not yet fully formed or developed", and when the word is used as a legal term of art it imports conspiracy, attempt or incitement to commit a substantive offence. As Prof O'Malley points out (Sentencing Law and Practice, 3rd edn, previously cited) at para 5-11, there are some specific statutory instances of inchoate offences, such as conspiracy to murder and incitement to hatred, but they generally remain governed by the common law. The substantive offence, particularly if it is a statutory offence, will frequently (although will not always) have a specified maximum penalty or penalties. The same is rarely true for inchoate versions of the substantive offence, and it is well established that in the absence of any particular statutory provision to the contrary, a common law offence triable on indictment is punishable by a fine or a term of imprisonment at the discretion of the court.
93. While this might suggest that a sentencing court will be at large when sentencing for an inchoate offence, for entirely logical reasons it has long been judicial sentencing policy and sentencing practice that any sentence to be imposed for such an offence should not exceed the maximum available for the substantive offence. The offence, the sentence for which is under appeal, is different, however, for reasons which we will explain. It is sui generis - a standalone offence which is not the inchoate version of any specific common law or statutory offence in the sense just spoken of. We will come back to this.
94. Before doing so, however, it is appropriate to make some further observations.
95. A criminal conspiracy is said to be an agreement between two or more persons to do an unlawful act, alternatively to do a lawful act by unlawful means.
96. In their quotidian usage, the noun "fraud", and its derivative verb, to "defraud", often import the notion of achieving a benefit or advantage dishonestly through some form of cheating or a deception, artifice or trick. Fraudulent conduct by means of which such an end might be achieved is capable of being committed in a myriad of ways, and might potentially comprise numerous types of offending behaviour, and sometimes could qualify as more than one type of such behaviour. To take just some examples from a single statute, namely the Act of 2001, fraudulent conduct might in some instances qualify as theft contrary to s. 4; it also might qualify, again depending on the circumstances, as making gain or causing loss by deception contrary to s. 6; or as obtaining services by deception contrary to s. 7; or as making off without payment contrary to s. 8; or as false accounting contrary to s. 10; or as forgery contrary to s. 25; or as using a false instrument contrary to s. 26, or as engaging in conduct amounting to the commission of a fraud outside the State affecting the financial interests of the EU contrary to s. 45(1).
97. Accordingly, a person said to have been a party to an agreement with another or others to commit any of the statutory offences just listed for illustrative purposes, could in principle be charged with the inchoate offence of conspiring to commit the relevant statutory offence. This begs the question as to why does there exist, in addition, a standalone sui-generis offence of conspiracy to defraud?
98. It is convenient at this point to say that the offence of conspiracy to defraud at common law has been held to be:
"an agreement by two or more persons by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled and an agreement by two or more by dishonesty to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud."
[See Scott v. Metropolitan Police Commissioner [1975] AC 819 at 840; [1974] 3 W.L.R. 741; [1974] 3 All. E.R. 1032; (1974) 60 Cr. App. R. 124; and Tarling v. Government of the Republic of Singapore (1978) 70 Cr. App. R. 77].
99. It is not an inchoate version of any specific common law or statutory offence in the sense just spoken above. There is no one substantive common law (or statutory) offence of which it is an inchoate version, e.g., a substantive offence of "defrauding" or "committing a fraud" simpliciter.
100. Why would this offence be charged in preference to the standard inchoate version of conspiracy. The answer is that there will from time to time be cases where having recourse to the latter may be neither convenient nor desirable as a means of effectively prosecuting the offender and reflecting the true level of the offender's criminality, e,g., where the agreement concerns wide ranging fraudulent conduct, perhaps extending to the intended commission of a great many individual offences over a substantial period of time, perhaps also involving different forms, or more than one form, of fraudulent behaviour, and perhaps embracing a great many victims, such that to have to charge numerous (conceivably hundreds or upwards) of individual inchoate instances of specific substantive offences would render the indictment and any prosecution based upon it unwieldy and difficult to present to a jury. In such a situation the ability to prefer a single charge of conspiracy to defraud contrary to common law, that embraces all of the offending conduct, and which is still yet capable of reflecting the true level of the offender's criminality, has distinct advantages from the perspective of a prosecutor. Ostensibly referencing this consideration, O'Malley states [at para 15-10 of his work, previously cited] "[large] scale frauds are often committed by two or more people acting in concert, so the charges may include conspiracy to defraud, vague and troublesome though that offence may be". A recent example postdating the publication of the latest edition of Professor O'Malley's seminal textbook, is to be found in People (DPP) v. Bowe and Casey [2017] IECA 250, a prosecution for conspiracy to defraud, contrary to common law, that arose out of events leading up to collapse of Anglo-Irish Bank Plc.
101. While, as Professor O'Malley alluded to in the passage just cited and again at para 19-31 of his work, some commentators have criticised the recognition of conspiracy to defraud contrary to common law for the vagueness of its definition and the uncertain scope of its application, it has nonetheless been accepted as existing in Ireland and as surviving the enactment of the Constitution. See in that regard, Myles v. Sreenan [1999] 4 IR 294; Attorney General v. Oldridge [2000] 4 IR 593; O'Sullivan v. Conroy (unreported, High Court, 31 July 1997); Egan v. O'Toole [2007] IESC 52, and more recently the decision of this Court in People (DPP) v. Bowe and Casey.
102. In so far as the issue of whether a court faced with sentencing an offender for that offence is bound by any actual, or de facto, maximum sentence is concerned, we approve of the following statement by Professor O'Malley [at para 5-11 of his previously cited work] as succinctly summarising the position in Irish law:
"In the absence of any particular statutory provision to the contrary, a common-law offence triable on indictment is punishable by a fine or a term of imprisonment at the discretion of the court. At one time, in England and Wales at least, it was believed that a prison sentence for conspiracy (and perhaps for attempt or incitement) could not exceed two years and, indeed, there was considerable historical evidence from the late nineteenth and early twentieth centuries indicating that such a principle was followed in practice. But any idea that it had crystallised into a rule of law was emphatically rejected in a series of decisions beginning with R. v Morris [per footnote 45, (1950) 34 Cr. App.R. 210] which held that the punishment for conspiracy, though limited to imprisonment or fine, is always at the court's discretion. What Irish and English courts have accepted, on the other hand, is that a sentence for conspiracy should not ordinarily exceed that which is available for the substantive offence. [Per footnote 46, People (Attorney General) v Giles [1974] I.R. 422 at 426 where the Supreme Court, while accepting the general principle, said that it was 'not necessarily valid in all cases.'] In so deciding, they have been aware of the possibility that prosecutors might use a conspiracy charge to circumvent a low maximum penalty attaching to the substantive offence. After all, it seems clear that there can be a conspiracy to commit a summary offence which will never carry a prison sentence in excess of 12 months. [Per footnote 47, Verrier v DPP [1967] 2 A.C 195; 50 Cr. App. R. 315 at 322–324. Again, this is no more than a general principle and it has been recognised that in exceptional cases, a conviction for conspiracy may merit a sentence beyond the maximum for the substantive offence. When several persons collaborate in planning to commit a crime, they may create a greater risk to individuals or the public at large than one person who actually commits the crime in question. As the author of a nineteenth-century treatise put it, "... the concurrence of several persons for committing an offence may essentially change its character, and so enhance its mischief that the joint act may properly be treated as a crime."
[Per footnote 48, Wright, The Law of Criminal Conspiracies and Agreements (London: Butterworths, 1873). See also Mogul Steamship Co v McGregor, Gow and Co (1888) 21 QBD 544 at 549, dealing with the economic tort of conspiracy to injure.]
103. This passage was cited to the sentencing judge in the appellant's case and was adopted by her, we are satisfied correctly, as representing the law. Having quoted from the passage just cited, she stated:
"In this instance, the Director of Public Prosecutions nominated section 4 theft and/or section 6 deception, as possible substantive offences, and, therefore, the penalties there would be either 10 years or five years, as maximum penalties. But, it [was] correctly stated that 'the court is not bound by the maximum which applies to those is that the statutory offences' (sic)
This court has carefully considered the offending in this case and is of the view that, in light of the scale of the offending, the number of injured parties, the duration of the offending over a period of two years and nine months, the multiple acts that would have been involved in this conspiracy, and the losses being €61 million, this court is entitled to part (sic) from maximum sentences outlined in either section 4 or section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 in regard to sentencing for the offence of conspiracy to defraud."
104. It was complained by counsel for the appellant in submissions to this court that there was nothing exceptional about this case, such as would have justified the sentencing judge in departing from the general policy as described by Prof O'Malley. We beg to differ. We are satisfied that the sentencing judge gave clear and cogent reasons for so regarding it and we entirely agree with her. The sheer scale on which the offending occurred in this matter, involving an agreement which required the performance of a huge number of individual transactions, over a prolonged period, involving nearly 200 individual victims, and losses in the tens of millions of Euro, was sufficient to place it in the category of an exceptional case in our view. For the sentencing judge to have taken any other view would have meant that her ability to render a just sentence proportionate in the dual sense required by the Constitution, i.e. proportionate both to the gravity of the offending conduct and to the circumstances of the appellant, would be inappropriately corralled and fettered.
105. In the circumstances we find no error on the part of the sentencing judge under this heading and reject Ground of Appeal No 1.
The Assessment of Gravity and Determination of a Headline Sentence
106. In our view this was truly egregious offending, which caused devastation in the lives of nearly 200 people as so poignantly described in the individual victim impact statements submitted to the court either by the victims themselves or on their behalf. Indeed, it may be inferred, that there were likely many more indirect victims, such as children or other family members of the direct victims, who would have distressingly observed their parents, or relatives, who had planned meticulously for their retirements being subjected to stress, worry, a sense of betrayal and in many cases real financial hardship.
107. The offending was significantly aggravated in numerous respects. It was not opportunistic or a succumbing to temptation on the spur of the moment. There was extensive premeditation, and planning, and a high level of sophistication in how the agreed deceptions were to be perpetrated, illustrated starkly by the evidence received by the sentencing court concerning "the pop-up" messages that were programmed to appear on screen whenever an employee of CHC was concerned to print up a computer statement of account in respect of certain clients. Then there was the fact that agreement contemplated the actual manipulation of client records using the "Unity" system, involving transaction "reversing" exercises on certain clients' accounts, with the agreement, knowledge and acquiescence of this appellant, to present a false picture to unsuspecting clients concerning the status and health of their investments.
108. There was an enormous breach of trust and of fiduciary duty. In so far as this appellant's part of it was concerned, the agreement comprising the conspiracy was formulated and executed in the knowledge that what was being done was wrong, and that it was an abuse of clients' trust, including that of many elderly clients who had entrusted their life savings to the appellant and his company CHC in the belief that they could depend on the honesty, integrity and professionalism of those concerned.
109. While it is the case, and we will return to this, that D/Insp. McGovern accepted in cross-examination that the misappropriation of client monies was for the purpose of trying to keep the company afloat, and that a circumstance such as this can sometimes be a factor suggestive of reduced culpability, we consider that the mitigating effect on culpability could only have been very modest, if any, in the circumstances of this case. To elaborate further, the appellant was a professional person, i.e., a banker and investment consultant who was required, and knew he was required, to operate to the highest standards of integrity and probity. He was operating in a highly regulated environment, and could not have failed to appreciate the profound impropriety of the misuse of client funds for whatever reason. It also could not credibly be suggested that the appellant's motives in doing what he did were predominantly selfless. He was a major shareholder in CHC, and was also facing financial ruin, and likely personal and professional ignominy, if CHC collapsed. While it may have been the case that the appellant's company traded dishonestly under his leadership and direction in the hope of keeping the company afloat, and that if he had succeeded in doing so his investors might have been spared some or all of the losses that they ultimately experienced, it could not credibly be suggested that his primary motivation was not a self-serving one. The evidence before the court below was to the effect that the appellant was a strong dominating personality within the company, and that, in effect, he was a driver of its corporate culture, at least at senior level, of concealment and dishonesty.
110. As to that culture, the evidence was that when Ms. Mahon expressed concerns to this appellant, in his capacity as CEO of CHC, about the unauthorised diversion of investors' funds, the appellant said to her, in the presence of the company's financial controller Paul Lavery, "Live with me on it". Subsequently Ms. Mahon was taken aside by another senior executive John Mulholland and was patronisingly told that she was not experienced enough to realise that sometimes commercial realities had to take precedence over integrity. She was also told that if, notwithstanding her expressed misgivings, she would stay on with the company that she would be a wealthy woman. The "Pop up" messages expressly instructed employees to "Please contact Paul Lavery or Harry Cassidy before any valuations are issued to the client". When the appellant was challenged by his co-accused, John Whyte, as to why actions on flagged accounts were being carried out behind closed doors, the appellant, reflecting the culture of concealment and dishonesty in the upper tiers of the organisation, told him that he "didn't need to know". Mr. Whyte told gardaí that when looking for answers from the appellant, you would never get the same answer twice and he would lose his temper when asked questions.
111. The value of the property involved, and the extent of the losses suffered is a highly aggravating feature of the case. While the harm caused is not per se determinative of gravity in a case such as this, the scale of any harm done is a highly relevant factor. While the appellant contends that there was evidence that the potential existed for greater recovery of assets in the liquidation than the sentencing judge made allowance for, we reject that argument. There was no actual evidence of that. A newspaper cutting was put to D/Insp. McGovern, which he had not previously seen and concerning a matter, namely what some Barrister had supposedly said in another forum, of which he had no knowledge. He accepted that it could be the case that there was still property that was yet to be sold because the liquidation was still ongoing, but he had no knowledge one way or the other as he was not involved in the liquidation. No evidence was called by the appellant on this issue of the potential existing for greater recovery of assets in the liquidation. The trial judge proceeded, correctly in our view, on the information provided to gardaí directly by the liquidator and relayed to the court without objection by D/Insp. McGovern.
112. No matter from what perspective this case is viewed it has to be accepted that there were losses running to tens of millions of euro, and very numerous victims, many of whom were elderly and, even where they might at one time have been regarded as "high net worth" individuals, were rendered vulnerable by being deprived of financial security in their retirement. These victims also experienced great stress, worry and sense of betrayal.
113. The length of time during which the conspiracy continued was also aggravating. Though there is a single count on the indictment this was by no means a one-off incident. The charge reflects an agreement that persisted for a considerable time and was evidenced by the many dealings described in evidence.
114. The custody threshold was unquestionably well crossed by the circumstances of the case and in terms of sentencing rationales to be pursued, the circumstances of the case necessitated to our minds that the dominant ones should be retribution and deterrence. Indeed, in circumstances where the conspirator being sentenced was a professional man who well knew the standards of behaviour expected of him, and who was operating within a highly regulated sector, in the probity of which there is a strong requirement to maintain public confidence, the need to promote general deterrence is incontestable. The need for specific deterrence is perhaps less so, in circumstances where this appellant through his own actions has lost his various investment licences and authorisations to operate in financial services, is now a discharged bankrupt with the reputational damage that goes with that, and is disqualified for a lengthy period from acting as a company director.
115. Because of the exceptional nature of the present case, in terms of the scale of the fraud and the level of harm done, the sentencing judge at first instance had in effect no useful guidance to assist her in terms of where to benchmark the gravity of the appellant's offending conduct in setting a headline sentence. She was at large in terms of any headline sentence she might impose, save for the overriding requirement that it should be proportionate to the gravity of the offending conduct taking into account both culpability and harm done. She was in effect required to, and did, proceed from first principles, which involved weighing gravity assessed with reference to culpability and harm done against the range of available penalties and deciding upon a proportionate point on the scale at which to locate it, and in doing so she determined upon a headline sentence of 14 years imprisonment.
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.
118. We reject the suggestion that the sentencing judge allowed herself to be inappropriately influenced by extraneous material. We are persuaded following a detailed consideration of the transcripts of the sentencing hearing that counsel for the respondent was right in contending that there was ample evidence before the court to justify the findings that the appellant was in overall control of the scheme, that he had devised it, implemented it and was the man in charge.
119. In the circumstances we find no error on the part of the sentencing judge in regard to her assessment of gravity or in regard to the headline sentence nominated by her, and we reject Grounds of Appeal No's 2, 3, 4, 5, 6 and 8 respectively.
Alleged failure to have regard to the parity principle and suggestion that the sentence imposed was disproportionate on that account and having regard to sentences imposed in similar cases.
120. The appellant complains in Ground of Appeal No 7 that the sentencing judge imposed a sentence which was disproportionate having regard to similar sentences imposed including those imposed on the appellant's co-accused. We can deal with this ground very shortly. The parity principle only applies as between accused's whose circumstances are substantially similar. That was not true in this case and we find no error in how the sentencing judge differentiated between different accused.
121. Insofar as it is suggested that the sentence was disproportionate having regard to sentences imposed in similar cases (i.e., comparators), we do not believe that the sentencing judge was made aware of any similar cases. The sentencing judge was referred to a number of cases where the courts have had to sentence offenders who have committed fraudulent offences, but she was not referred to any specific sentencing judgment in a case where the scale of the fraud and the harm done approached that with which she was concerned in this case. Indeed, we have already commented that because of the exceptional nature of the present case, in terms of the scale of the fraud and the level of harm done, the sentencing judge at first instance had no useful guidance to assist her in terms of where to benchmark the gravity of the appellant's offending conduct in setting a headline sentence, and had, in effect to proceed from first principles.
122. We feel it necessary at this point to refer to this Court's judgment in People (DPP) v. Maguire [2018] IECA 310, cited indeed by both sides in the present case, which was a judgment in which this Court reviewed the sentences imposed in a large number of cases involving various types of fraudulent offending, although it did not confine itself specifically to conspiracy to defraud at common law. At paragraph 105 of our judgment in that case we said:
"105. So what do the comparators we have reviewed tell us about how the courts have approached the assessment of gravity in other cases sharing many of the features of the case with which we are presently concerned? ... As might be expected, the overall result of the review is something of a bell curve with the majority of pre-mitigation sentences in the range from two years' to four years' imprisonment. At the lower end of the curve, we see actual or inferred headline sentences of twenty months or less, typified by cases such as Maguire, Durcan, Lynch and Perry, while at the other extreme one sees the Murray case where there was a sentence of nine years' imprisonment with the final year suspended, and the (Thomas) Byrne case where a sentence of twelve years was imposed."
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.
127. In the circumstances we find that the complaint that the sentence imposed in this case was disproportionate having regard to sentences imposed in "similar cases" is misconceived.
128. We find no error on the part of the sentencing judge in differentiating as between the appellant and his co-accused, and no basis for suggesting that she failed to have regard to sentences imposed in "similar cases". The culpability of this accused and that of his co-accused is not the same. Moreover, there are no other "similar cases" from this jurisdiction, i.e., cases involving fraudulent activity on this scale, in which there are written judgments to which regard can be had. We therefore reject so much of Ground of Appeal No 7 as suggested the contrary.
Overall Proportionality
129. It is complained that overall the sentence imposed by the sentencing judge at first instance was disproportionate and that it was crushing. We do not agree. This was very serious offending that required to be appropriately punished. Moreover, there was a necessity to send a deterrent message. A significant custodial sentence had to be imposed.
130. Nevertheless, the sentencing judge discounted significantly from the headline sentence of 14 years to the extent of 50%, leaving a post mitigation sentence of 7 years. In addition, this was further reduced to 6 years and ten months to take into account the period of time spent on remand in Germany. We agree with the respondent that this reduction in sentence was generous, and we are satisfied that it adequately took into account the mitigation available to the appellant, including his age and state of health.
131. There is no doubt but that the appellant has received a substantial sentence. However, it was a case that merited a substantial sentence. He was 67 years of age at the time of sentencing. There are many offenders older than that in our prisons, and he cannot be said to have no hope of a life after prison. He must, however, pay his debt to society. In the circumstances we consider that the overall sentence was proportionate in the dual sense required by the Constitution, and was not crushing. We find no error on the part of the sentencing judge in regard to proportionality and again reject so much of Ground of Appeal No 7 as contends the contrary.
Conclusion
132. The sentence imposed at first instance was not unduly severe, and the appeal should be dismissed.