DPP v Forde

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 28 November 2014
• Neutral Citation: [2014] IECA 41
• Docket Number: Appeal Number: 138CJA/14
• Court: Court of Appeal (Ireland)
• Date: 28 November 2014

[2014] IECA 41

THE COURT OF APPEAL

Birmingham J

Sheehan J

Mahon J

Appeal Number: 138CJA/14

DPP v Forde

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE (at the suit of the DIRECTOR OF PUBLIC PROSECUTIONS)

APPELLANT

v.

Ignatius Forde

RESPONDENT

COMPANIES ACT 1990 S242(1)

COMPANIES ACT 1990 S187(1B)

COMPANIES ACT 1990 S9

COMPANIES ACT 1990 S187

COMPANIES ACT 1990 S242

DPP v M (J) 2002 1 IR 363 2002/10/2259

COMPANIES ACT 1990 S160

Sentence Review – Unduly Lenient - Companies Act 1990 – False Accounts – Mitigating Factors – Aggravating Factors – Disqualification – Practice and Procedure – Judicial Discretion

Facts: This case concerned an application for a review of a sentence imposed on the basis that it was unduly lenient. The penalty imposed by the learned trial judge for a number of offences including the production of false audit reports, was a fine of €1,000 with six months to pay. The appellant, on whom the onus of establishing that the €1,000 was unduly lenient rested, sought to have that sentence reviewed on the basis that the learned trial judge erred in principle in imposing a sentence which constituted a substantial departure from that which was appropriate in the circumstances. It was submitted that there was insufficient regard to a number of aggravating factors including the fact that there were a number of previous convictions of a relevant nature. The Appellant also submitted that a number of mitigating factors were given too much weight, including the respondent"s age, health and reputational damage.

Held by the Court in light of the available evidence and submissions presented that the financial penalty imposed was, on its own, unduly lenient. The Court was of the opinion that it did not adequately represent the gravity of the offences pleaded to, particularly having regard to the history of previous convictions, and the significant element of repeat offending and the apparent failure on the learned trial judge"s part to consider a range of sentences appropriate to the case and then place this case in that range. The Court was satisfied that, the repeated offending and the failure to identify the range of sentences in the point on that scale, appropriate to this case amounted to errors in principle. Consequently, it was the decision of the Court that the respondent be ordered to undertake 200 hours of community service, in lieu of a twelve months prison sentence. In addition the court increased the fine of €1,000 to one of €3,000 and gave him six months to pay, and in default, 12 months" imprisonment.

1 JUDGMENT of the Court (ex tempore) delivered on the 28th day of November 2014 by Mr. Justice Mahon

2 1. This is an application for a review of the sentence imposed at Carlow Circuit Court on 15 ^th May 2014 on the basis that it was unduly lenient. The penalty imposed by the learned trial judge was a fine of €1,000 with six months to pay. This was imposed in relation to a number of counts and there were an additional number of counts taken into consideration.

3 2. The offences involved the production of false audit reports contrary to s. 2421 of the Companies Act 1990, which carries a penalty of a fine of up to €12,697 and/or up to five years in prison and acting as an auditor when disqualified contrary to s. 187B and 9 of the Companies Act 1990, which carries a penalty of a fine of up to €6,248. There were, in total, thirteen counts. A further thirty seven counts in the indictment were taken into consideration. The respondent pleaded guilty at an early stage in the proceedings.

4 3. The respondent carried on a business of providing accountancy services over a thirty year period in his local area. His clients, including those who were victims of these offences, were generally open businesses. The respondent had engaged in the activity that led to these offences while not a qualified auditor. He dishonestly used the names and false signatures of two qualified auditors and an accountant without their knowledge. He also used an invented name and purported it to be that of a qualified auditor and falsely purported himself to be a qualified auditor. The...