DPP v Hawkins

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 07 November 2014
• Neutral Citation: [2014] IECCA 38
• Court: Court of Criminal Appeal
• Date: 07 November 2014

[2014] IECCA 38

An Chúirt Achomhairc Choiriúil The Court of Criminal Appeal

Charleton J, Moriarty J, Kelly J

Bill number 0321DU of 2011 Appeal number 342 of 2012

In the matter of section 63 of the Courts of Justice Act 1924

Between/

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

Carol Hawkins

Accused/Appellant

Sentencing – Theft – Error in principle – Appellant seeking to appeal against sentence – Whether the trial judge made an error of principle

Facts: The appellant, Ms Hawkins, worked for Mr Clayton as a housekeeper over a period of about eight years from 1992. Her duties changed from 2000 to include taking on the role of his personal assistant. She was paid approximately €4000 per month. She was given signing rights on cheque books in respect of two of his bank accounts specifically for the purpose of discharging his outgoings. Nothing in her duties enabled her to pay any form of bonus to herself. Over a period of two years, she stole 181 cheques the property of her employer to a value of €2.8 million approximately. These cheques were transferred into her own accounts. At the trial, forensic accounting evidence was given as to the expenditure that resulted from these dishonest transactions. She was sentenced in July, 2012 to seven years imprisonment in respect of these offences by the trial judge. In October, 2014, judgment was given by the Court of Criminal Appeal dismissing her appeal against conviction. That same day, argument was heard on the appeal against sentence that had been left over to await that decision. At issue was whether there was any error in principle that would enable the Court of Criminal Appeal to interfere with that sentence. The appellant argued that she has made the most of her time in prison and successfully completed difficult educational courses with a view to fitting out her life into the future. It was argued that the trial judge failed to take this into account on sentencing. It was also submitted that because of the notoriety of the case, her options in the future cannot extend to positions of responsibility and that she will have to take difficult measures with a view to re-establishing her life.

Held by Charleton J that failing to see into the appellant’s future cannot be regarded as an error of principle by the trial judge, referring to The People (DPP) v Walsh (1989) 3 Frewen 248. In the adjudication of what the appropriate sentence was to be, Charleton J held that it was clear from the remarks of the trial judge that he took into account in a proper way how a court should approach that question, citing The People (Attorney General) v O’Driscoll (1972) 1 Frewen 351. Charleton J held that it is clear that no error of principle is apparent in the approach of the trial judge. Charleton J held that the trial judge was clearly correct in identifying the broad parameters into which this case fitted as being in the most serious category; by reason of the mitigating factors that were urged, and with a view to ensuring that some hope was properly left alive in the mind of the appellant while serving the sentence, the trial judge did not impose the maximum sentence available. While he did not articulate the kind of offences that might appropriately be categorised as the most serious and would possibly attract the maximum sentence, Charleton J found it to be clear that he identified correctly as a matter of principle why this case could be differentiated from the most serious band. While this was a series of offences which lasted over a number of years and involved a multiplicity of offences and the theft of extremely large amounts of money together with a betrayal of trust by the appellant of a decent and caring employer, it was not one of those cases whereby the victim of the offences was bereft of finance and in circumstances of hardship, a conclusion supported by Charleton J. He held that the trial judge scoured the evidence with a view to finding some mitigating factor, which he found to be present in the cooperation which she belatedly offered in relation to securing a New York property for the victim. Charleton J held this to be an appropriate sentencing exercise; the trial judge again found some grain of evidence in favour of the appellant by noticing that she had not perjured herself and had not given such instructions to her counsel as would have required him to engage in any form of direct challenge to credibility. In consequence, the approach of the trial judge was held to be correct in principle and showed appropriate regard both to rehabilitation and to mercy.

McDermott J held that since no error of principle was identified the Court of Criminal Appeal could not interfere with the sentence.

Appeal dismissed.

Mr Justice Charleton

Judgment of the Court delivered by Mr Justice Charleton on the 7th day of November 2014

1 1. On 29th October, 2014, judgment was given by this Court dismissing the appeal in this case against conviction. That same day, argument was heard on the appeal against sentence that had been left over to await that decision.

2 Background

3 2. The appellant was sentenced the 6th July, 2012 to seven years imprisonment in respect of these offences by the trial judge, His Honour Judge McCartan. At issue is whether there is any error in principle that would enable this Court to interfere with that sentence.

4 3. The background to the offences has been stated in the judgment of the Court affirming the conviction. A concise reference to the salient facts is necessary. From 1992 the appellant worked for Adam Clayton as a housekeeper over a period of about eight years. Because of the satisfactory nature of her temperament and because of her diligence, she became indispensable to him. Her duties changed from about the year 2000 to include taking on the role of his personal assistant. She was paid approximately €4000 per month. She was given signing rights on cheque books in respect of two of his bank accounts and this was, as the jury clearly found, specifically for the purpose of discharging his outgoings. These included flights, household expenses for his home in south Dublin and other sundry items that would arise from time to time. Nothing in her duties enabled her to pay any form of bonus to herself, either in cash terms by way of a purchase using Adam Clayton’s bank accounts. Over a period of two calendar years, however, the appellant abused the trust that had been placed in her and stole, according to the verdict of the jury, 181 cheques the property of her employer to a value of €2.8 million approximately. These cheques were transferred into her own accounts. At the trial, impressive forensic accounting evidence was given as to the expenditure that resulted from these dishonest transactions. At paragraph 4 of this Court’s judgement on conviction, a sample of the spending by the appellant was set out. This is now quoted:

Nonetheless, the prosecution proved that other expenditures had been made. Much of it was most unusual. One of the exhibits produced was an insurance schedule from a firm called Sean Barrett, Bloodstock Insurances Limited. As of 11th November, 2005 this listed a schedule of 22 horses that were insured under a bloodstock schedule called Plato Racing. The horses included Javana, valued at €10,000; Academie Royale, valued at €10,000; One Great Lady, valued at €30,000, Let’s Dance, valued at €10,000; Ionizer, valued at €10,000; Royal Opera, valued at €10,000; Manipulator, valued at €39,000; Madam Mosaic, valued at €5,000; Cheonmado, valued at €20,000; Valour Lady, valued at €10,000. Other unnamed fillies were in training, including one valued at €51,000. A forensic examination of the bank accounts of the appellant over the relevant period showed horse racing expenditure at €434,000, credit card payments of €172,000, transfers to a family member of €48,000, the purchase of a car for €21,000, fees to the New York Film Academy of €22,000, transfers to another family member of €19,000 and rent on a New York apartment of €17,000. In addition, an account held by the appellant jointly with another family member showed the purchase of an apartment in New York for €350,000, credit card payments of €104,000, cash withdrawals of €97,000, various other horse racing expenditure of €95,000, travel expenses of €36,000 as well as other sums paid. An analysis of the average annual credit card expenditure during the relevant period established a figure of €304,000. This included department store spending of €330,000 and spending in restaurants and hotels of €225,000 with €153,000 expended on airline tickets. In addition there were cash withdrawals by way of the appellant’s personal credit card of €64,000. The sums have been rounded down to the nearest thousand.

5 4. The maximum sentence for an offence of theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 is 10 years imprisonment. The learned trial judge approached the issue of sentencing in this way:

I have, in the first instance… to consider whereupon the scale does this crime fit in the nature of the offences contemplated by the statute. It seems to me that it must rank at the higher end of the scale and is, in fact, in its scale and nature, representing a serious breach of trust between employee and employer, and the way in which it was craftily done over time, it must rank as a case deserving of the maximum sentence provided by the section, of 10 years.

The aggravating factors in the case are those set out and have been mentioned already: the scale of the theft – this was a vast amount of money to be taken by one individual of another, irrespective of their position and represented… a significant breach of trust between two people. Mr Clayton seems to this...