DPP v Durcan

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 23 January 2017
• Neutral Citation: [2017] IECA 3
• Docket Number: 312/16
• Court: Court of Appeal (Ireland)
• Date: 23 January 2017

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Jacqueline Durcan

Appellant

[2017] IECA 3

Birmingham J.

Birmingham J.

Mahon J.

Edwards J.

312/16

THE COURT OF APPEAL

Sentencing – Fraud – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Ms Durcan, was a solicitor. In February, 2011, on learning that her practice was about to be the subject of an audit, Ms Durcan contacted the Law Society and told them that there was a deficit in her client account. Subsequent analysis identified that the deficit was in the region of €250,000. At a later stage, the Garda Bureau of Fraud Investigation was contacted by the Law Society, and when it became involved it was ascertained that there had been a number of transactions between 2008 and 2011. All but one of the transactions saw the sums taken from the client account deployed for purposes related to the practice, including on occasions the payment of professional indemnity insurance. The one exception related to a transaction in 2010, when a sum of €51,500 was withdrawn from the account, the purpose being to pay stamp duty in respect of the purchase of the appellant’s family home. In the course of interviews with Garda Bureau of Fraud Investigation officers, the appellant explained that she had made a number of property investments which had gone wrong resulting in debts of €6.5 million. The cooperation with the Law Society involved identifying the individuals who were potentially at a loss. All were compensated through the Solicitors’ Compensation Fund, but of note was that the fund in turn has been reimbursed in full by the appellant with the assistance of her mother. The appellant was sentenced to twelve months imprisonment in the Dublin Circuit Criminal Court on the 8th December, 2016. The appellant appealed to the Court of Appeal against severity of sentence. The appellant took as a starting point that there was no definitive statement from the Supreme Court that there was a mandatory requirement for a custodial sentence even when significant sums of money were involved in a theft or fraud. It was submitted that even if some element of exceptionality was required if custody was to be avoided, this was a case which met any such threshold. The appellant was critical of the fact that the judge’s sentencing remarks did not specifically address the question of whether this was a case that could have been dealt with by a non-custodial sentence.

Held by the Court that they were unable to conclude that the judge erred in taking the view that the case required a custodial sentence. In the Court’s view even on the basis that there was going to be a custodial sentence, the case could have been dealt with by a sentence somewhat less than twelve months. The Court held that to the extent that that did not happen, there was an error. The Court was struck by the information put before it about the difficulties the appellant faces maintaining contact with her husband and in particular with her children.

The Court held that, in re-sentencing, they would not depart from the view of the Circuit Court that this was a case for a custodial sentence, but the Court, conscious of how difficult a prison sentence must be for a mother of a large young family required to serve her sentence away from her husband and children, reduced the sentence from one of twelve months to six months.

Appeal allowed.

JUDGMENT of the Court delivered on the 23rd day of January 2017 by Mr. Justice Birmingham

1 This is an appeal against severity of sentence. The sentence under appeal is one of twelve months imprisonment imposed in the Dublin Circuit Criminal Court on the 8th December, 2016.

2 The background to the case is that the appellant was a solicitor, since this matter came to light she has been struck off the Roll of Solicitors, who practiced as a sole practitioner in a long established family firm in Co. Mayo.

3 In February, 2011, the Law Society moved to conduct a routine practice audit. On learning that her practice was about to be the subject of an audit, Ms. Durcan contacted the Law Society and told them that there was a deficit in her client account. Subsequent analysis identified that the deficit was in the region of €250,000. At a later stage, the Garda Bureau of Fraud Investigation was contacted by the Law Society, and when it became involved it was ascertained that there had been a number of transactions between 2008 and 2011. All but one of the transactions saw the sums taken from the client account deployed for purposes related to the practice, including on occasions the payment of professional indemnity insurance. The one exception relates to a transaction in 2010, when a sum of €51,500 was withdrawn from the account, the purpose being to pay stamp duty in respect of the purchase of the appellant's family home.

4 It is accepted that once the appellant learnt that there was a prospect of an audit, she was cooperative in every way, making contact with the Law Society and fully cooperating with it in the first instance, and then cooperating with the GBFI (Garda Bureau of Fraud Investigation) when it became involved.

5 In the course of interviews with the GBFI officers, she explained that she had made a number of property investments which had gone wrong resulting in debts of €6.5 million. However, it is of note that when the garda investigator was summarising the facts of the case for the Circuit Court, he volunteered the fact that when the appellant's home was searched as part of the investigation, it became apparent to the gardaí that the appellant's circumstances were ‘fairly basic’.

6 The cooperation with the Law Society involved identifying the individuals who were potentially at a loss. All were compensated through the Solicitors' Compensation Fund, but of note is that the fund in turn has been reimbursed in full by the appellant with the assistance of her mother. Part of the reimbursement came from funds available to the appellant's mother, but another part was as a result of the appellant remitting fees that came through after she had ceased practice to the Law Society. Full reimbursement was made to the Law Society Compensation Fund by the end of 2014.

7 In terms of the appellant's background and circumstances, she is now 48 years of age. She had practiced as a sole practitioner, having inherited the family practice from her father, the practice had been established by her grandfather. She is a married lady and the mother of five children aged between seven years and thirteen years. When these matters came to light, she was, as was inevitable, struck off as a solicitor. She and her husband moved with their children to Brussels, where she teaches English as a foreign language and her husband also teaches.

8 The sentencing court received documentation in relation to the fact that she had worked as a volunteer for a year with refugees from Rwanda in Tanzania. Other documents among an impressive booklet of testimonials submitted referred to her active involvement in the affairs of her home parish of Balla & Belcarra, Co. Mayo.

9 The plea in mitigation in the Circuit Court emphasised the level of cooperation, including complete reimbursement, which was then followed by an early plea, a plea that was of considerable value as this would otherwise have been a difficult and complex case. Counsel referred to his client's family situation, and to the background of massive debts. Counsel also referred to the enormous loss of reputation, professional and otherwise. Ms. Durcan had at one stage occupied a senior position in the Mayo Solicitors Bar Association, and the court proceedings had received enormous coverage in the local papers – there had in fact been an earlier sentencing hearing which did not proceed to a conclusion because the judge dealing with the case became aware that there was some distant family connection.

10 The Circuit Court judge took time to consider the matter and decided to defer sentence until the 8th December, 2016. In the course of those sentencing remarks, the judge referred to the fact that Ms. Durcan had contacted the Law Society and informed them that there would be a deficit in her accounts, that Ms. Durcan cooperated fully with both the Law Society and the garda investigation, and that full admissions were made at all times. She referred to the fact that all of the transactions bar one saw the monies taken put back into the practice. The judge referred to the fact that the court had been told that the then accused's living standards were basic, that she and her family had got into significant debt, and that the person before the court was the mother of five young...