DPP v Boyle

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 13 May 2019
• Neutral Citation: [2019] IECA 160
• Docket Number: [107CJA/18]
• Court: Court of Appeal (Ireland)
• Date: 13 May 2019

[2019] IECA 160

THE COURT OF APPEAL

Birmingham P.

Birmingham P.

Edwards J.

Kennedy J.

[107CJA/18]

SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

FINBAR BOYLE

RESPONDENT

Sentencing – Theft – Undue leniency – Applicant seeking review of sentences – Whether sentences were unduly lenient

Facts: The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993, seeking to review on grounds of undue leniency sentences that were imposed on the respondent, Mr Boyle. The sentences in question were sentences of two years imprisonment, but suspended, which were imposed on each of the counts to which the respondent had entered pleas of guilty imposed on 15th March 2018. He had appeared before the Court on an indictment which contained twenty-three counts and had entered pleas of guilty to five counts of theft and two counts of forgery on a representative basis. The net issue for the Court of Appeal was to address the question of whether it was open to the sentencing Court to deal with matters on a non-custodial basis.

Held by the Court that this was a case where the offending was of such seriousness that a custodial sentence was required. In the Court’s view, the sentence actually imposed was, therefore, unduly lenient. The Court proceeded to resentence the applicant.

The Court held that, had the Judge imposed the sentence of two years, this would have been an appropriate sentence. However, in resentencing, the Court felt that it should impose a somewhat lesser sentence. The Court noted that it was sending someone to prison three and a half years after the original sentence hearing, someone who avoided a custodial sentence in the Circuit Court. The Court also took into account the fact that a sum of €25,000 was raised by way of partial restitution with the help of family and friends. In order to give effect to those factors, the Court held that it would limit the sentence that Mr Boyle would be required to serve to one of 15 months imprisonment. Accordingly, the Court quashed the sentences of the Circuit Court and substituted therefor sentences of fifteen months in respect of each count.

Appeal allowed.

JUDGMENT (Ex tempore) of the Court delivered on the 13th day of May 2019 by Birmingham P.

1 This is an application brought by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, seeking to review on grounds of undue leniency sentences that were imposed on the respondent. The sentences in question are sentences of two years imprisonment, but suspended, which were imposed on each of the counts to which the respondent, Mr. Finbar Boyle, had entered pleas of guilty imposed on 15th March 2018. He had appeared before the Court on an indictment which contained twenty-three counts and had entered pleas of guilty to five counts of theft and two counts of forgery on a representative basis.

2 There is no real dispute between the parties about the legal principles applicable to reviews such as these, and indeed, the principles that should be applied have not been in any dispute since the first such case, that of DPP v. Byrne [1995] 1 ILRM 279 when the judgment of the Court of Criminal Appeal was delivered by O'Flaherty J.

3 The evidence in relation to the offending in issue here was given to the Circuit Court on 2nd December 2015. On that occasion, the Court heard that Mr. Boyle had been the school Principal at Kilnaleck National School. It is a small school with five teachers and 70 pupils. In January 2012, a recently-elected Treasurer to the school Board of management became concerned when Mr. Boyle seemed slow to respond to some queries that were raised with him. An audit was undertaken and uncovered theft and fraud activity on the part of Mr. Boyle amounting to some €204,118.

4 The irregularities uncovered fell into a number of different categories. The respondent had been provided with a Visa card to use for school purposes, but he had used it on his own behalf. This included meals in restaurants, weekends away, golf equipment, and other purchases. The irregular transactions on the Visa account amounted to €66,492. Cheques were improperly drawn on a school account with the Ulster Bank in the amount of €29,277. Cheques were improperly drawn on a school account with AIB Bank in the amount of €32,199. A sum of €2,850 was misapplied from a school Post Office account and there was a sum of €73,300 in respect of payments from the Department of Social Protection. These payments related to the School Meals Scheme. At one stage, the school had participated in that scheme, but in October 2008, the Board had a change of policy and decided to withdraw from participation in the scheme. The last meal was supplied to the school on 31st October 2008. However, thereafter, the respondent continued to submit claims to the Department, and when the Department adopted a policy of electronic transfer, he opened an account, a second account, with AIB in Cavan in order that the payments could be made into that account. The existence of this second account came to light when the school authorities sought to close the one account that they knew of with AIB Cavan and were asked by the bank what they wanted to do about the second account. The pattern of offending that was reported to the Court occurred between 2007 and 2012.

5 At the sentence hearing, the Court heard character evidence from a number of witnesses called on behalf of the defence and there were also a number of very...