THE COURT OF APPEAL
Birmingham P. Hedigan J. McCarthy J. 195CJA/2017
THE PEOPLE
(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
JUDGMENT ( ex tempore ) of the Court delivered on the 20th day of July 2018 by
Mr. Justice McCarthy
1. This is an appeal by the Director of Public Prosecutions or perhaps more properly known as a review in relation to a suspended sentence of four and a half years imposed on the respondent/accused in this matter. He pleaded guilty to 46 counts out of 343 counts of theft. The 46 counts were on the basis that the entirety of his criminality would be taken into account and were accordingly sample counts. They pertain to a period from the 2nd July 2008 to the 11th December 2013. The accused had claimed so-called jobseekers allowance of €55,543 during that period and also a rent allowance of €54,916. He had rented a house at Sallins, Co. Kildare for the purpose of perpetrating his fraud. He adopted the identity of a person who he knew was living outside the jurisdiction and obtained his birth certificate. At the time he was already in receipt of disability benefit in his own right at his true home. The offences undoubtedly had a degree of sophistication and required a degree of organisation and planning.
2. The accused, after his sentence, pursuant to a term of the suspension imposed by the Circuit Court judge, repaid €4,000 within the period specified in that order. Subsequently the sum of €2,000 was repaid by way, it seems, of withholding on the payment owed to the accused by the Department of Social Welfare. He is also paying now, and has for a significant period been paying, €28 per week from the social welfare receipts.
3. The Director's application here is based upon the proposition that the trial judge gave undue weight to the mitigating factors which were present including the fact that the accused had suffered from depression, giving rise to the disability payment, was not at risk of offending in the future, had made full admissions which were of considerable benefit to the prosecution, had expressed remorse and pleaded guilty.
4. Unfortunately the trial judge seems to have made an error of fact in that he refers to the fact that the accused was drug-clean or free. There was no evidence of a real kind in support of the proposition that he had had a drug problem or, as he asserted to the probation officer, had lived a chaotic life. Rightly the probation officer commented to the effect that the nature of the fraud and its sophistication was at variance certainly with the latter proposition.
5. As to the question of remorse, it appears from the probation report that at least so far as the Department of Social Welfare is concerned by which we mean the public purse, he does not appear to have shown any degree of insight. Mr. Spencer sought to compare the accused with his wife and sister upon whom sentences of three years were respectively imposed, wholly suspended. He accepted that his client could be distinguished from them in as much as he accepted that he had put pressure at least upon his wife, asserted that he was the instigator and, further, was responsible for seeking rent allowance but he submitted that these distinctions were insufficient to warrant a divergency to the extent of depriving him of a period of suspension. He stressed the extensive discretion or margin which should be afforded to trial judges when dealing with sentencing. The Director of Public Prosecutions reminded the court that Mr. Stokes effectively had profited himself as the principal in the fraud and explicitly stated that he had persuaded his wife. Indeed it appears from the probation report that he regards her as "a victim".
6. The decision of the Director of Public Prosecutions in DPP v. Byrne [1995] is well known and needs no restatement. As we know, it elaborates on the principles which apply on an appeal of this kind.
7. The Court refers also to two decisions of one of its members, Hedigan J., of DPP v. Lawlor and DPP v. Hehir , both delivered on the 17th July. In the case of Lawlor Hedigan J. quoted with approval certain observations of Mahon J. in DPP v. Zaphir . In these cases it was pointed out that:
"serious premeditated fraud will almost always merit a custodial sentence,"
but the margin of discretion available, of course, to the trial judge was also stressed.
8. We take the view that whilst there are significant mitigating factors there were no exceptional circumstances that would justify complete suspension of the sentences here notwithstanding the minimal or modest nature of the discrepancy so to speak between the involvement of the accused and his wife and sister. We think in the circumstances that the Director of Public Prosecutions has made out the case that the sentence was unduly lenient insofar as it was suspended in its entirety. We take the view that the sentencing court would have been justified in partially suspending the sentence had it decided to suspend the final two years thereof but not the entirety.
9. We have regard, however, to the subsequent payment of €2,000 and that the accused is now put in a position of having to go into custody, the fact that there are continuing deductions from his social welfare payments and the payment of an additional €2,000 and we accordingly think in the circumstances that we will vary the order by providing for a suspension of only three years (on the same terms). Thus he will serve 18 months in custody.
