DPP v Hehir

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 17 July 2018
• Neutral Citation: [2018] IECA 244
• Court: Court of Appeal (Ireland)
• Docket Number: 39CJA/18
• Date: 17 July 2018

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

Respondent

And

Mark Hehir

Appellant

[2018] IECA 244

Hedigan J.

Birmingham J.

Edwards J.

Hedigan J.

39CJA/18

THE COURT OF APPEAL

Sentencing – Theft – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Hehir, pleaded guilty to ten sample counts of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud) Offences Act 2001 on 30th May, 2017. On 19th January, 2018, the sentencing judge imposed 240 hours community service on the respondent in relation to the first count, and imposed two years' imprisonment on the balance of the counts which was suspended in its entirety for five years on certain conditions. The appellant, the DPP, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review of sentence on grounds of undue leniency. The appellant submitted that the sentencing judge erred in principle: 1) in the manner in which he structured the sentence imposed by applying insufficient weight to the aggravating features of the case and/or undue weight to the mitigating factors present; 2) in failing to attach any or any sufficient weight to the evidence as to the circumstances of and surrounding the commission of the offence, and in particular the aggravating factors in the matter; 3) by imposing penalties which failed to adequately reflect the principle of general deterrence.

Held by the Court that, having considered DPP v Nalia Zaffer No.1 [2016] IECA 321, the sentencing judge's decision set out carefully, succinctly but comprehensively a list of factors that led him to the conclusion that a custodial sentence was neither necessary nor desirable; he carefully balanced all factors involved and missed nothing in his outline of those factors. Allowing the sentencing judge a substantial margin of discretion in identifying and balancing the special circumstances of the case, it appeared to the Court that there was no basis upon which the Court could intervene.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 17th day of July, 2018 by Mr. Justice Hedigan

1 This is an application brought by the Director of Public Prosecutions pursuant to section 2 of the Criminal Justice Act 1993 (the 1993 Act) seeking a review of sentence on grounds of undue leniency. The applicant pleaded guilty to ten sample counts of theft contrary to section 4 of the Criminal Justice (Theft and Fraud) Offences Act 2001 on 30th May, 2017. On 19th January, 2018, the learned sentencing judge imposed 240 hours community service on the respondent in relation to the first count, and imposed two years' imprisonment on the balance of the counts which was suspended in its entirety for five years on certain conditions.

Background

2 On 3rd October, 2016, Louise Niemann of City Bin Company reported a theft to Gardaí of €305,072.64 from the company's accounts. The respondent had been an employee of City Bin Company and had been in full control of the company accounts. Between 20th April, 2016 and 22nd September, 2016, the respondent transferred money electronically from the company's accounts to his own personal bank account on 71 separate dates.

3 The local bank manager contacted the respondent regarding irregularities in his personal account. The respondent went to the bank and there admitted to having committed the offences herein. The bank manager contacted the respondent's father and informed him of what the respondent had done. He in turn alerted the City Bin Company to the fact of the missing money. The respondent made full admissions to the Gardaí. He stated that he had stolen the money to fuel his gambling addiction with online bookies. He made a payment to the company of €29,000 by way of restitution, having received financial aid in this regard from his parents. Ms Niemann stated to the Gardaí that €259,072.64 was now owing to the company.

Personal Circumstances of the Respondent

4 The respondent was a 26 year old man when he was interviewed by the Gardaí. After making full admissions, the respondent received treatment for his gambling addiction in Hope House, Foxford, County Mayo. He has no previous convictions. At the time of sentencing, he lived with his parents in Tuam and was in full time employment with a multinational medical devices company in Galway, who retained the respondent despite his previous offending. The respondent is currently repaying City Bin Company €100 per week by way of direct debit. He was assessed by the Probation and Welfare Service who stated he was at a low risk of future offending. He has engaged in restorative justice work with the Probation Service and has substantial support from friends, family and community. He is heavily involved with the GAA and is described as being of good standing in the community.

Sentence

5 The learned sentencing judge delivered his sentence as follows:

'[I]n respect of count 1, I am -- I will, in lieu of a two year sentence, require him to perform 240 service, which is the maximum I can require him to perform. In respect of the balance of the sentences, I will impose a two year sentence in each to run concurrently and suspend them in their entirety for five years on a number of conditions. The first condition is that he remains of good behaviour. He will remain gambling free. He will continue to attend aftercare with Hope House and follow all directions by the probation and welfare service, under whose care he will remain for the next two years. In addition, he will not open, either directly or indirectly, any account with any bookmaker, either in person or online, and will close or arrange to be closed any accounts that exist. He will continue to pay €100 per week to his former employer and the sum of €3,000, which as I understand he has and that will be paid over. Is there anything else? That concludes this sentence hearing.'

6 The learned sentencing judge stated that the breach of trust involved in the offending was an aggravating factor in the case. Mitigating factors included the following: the fact that the respondent cooperated fully in the investigation; his acceptance of responsibility; his guilty plea at the earliest opportunity; his good character; the fact that compensation had been made; his attendance at gambling aftercare; the fact that he had been assessed by the probation services as being at low risk of reoffending; his remorse for his actions; his engagement with restorative justice work; his new job and attempts to rebuild his career.

Grounds of Appeal

7 The learned sentencing judge erred in principle in the manner in which he structured the sentence imposed by applying insufficient weight to the aggravating features of the case and/or undue weight to the mitigating factors present.

8 The learned sentencing judge erred in principle in failing to attach any or any sufficient weight to the evidence as to the circumstances of and surrounding the commission of the offence, and in particular the aggravating factors in the matter.

9 The learned sentencing judge erred in principle by imposing penalties which failed to adequately reflect the principle of general deterrence.

Submissions of the Appellant

10 Many cases have come before the courts where those in positions of trust have stolen large amounts of money, and appeared at sentencing with significant mitigation available to them. Despite this, the courts have consistently held that custodial sentences ought be imposed.

11 In DPP v Lisa Lynch [2018] IECA 1, the accused was sentenced to eighteen months' imprisonment for falsifying invoices resulting in a loss of €460,000 to a financial services firm. Whilst it was acknowledged that significant mitigating factors were present in the case, including the fact of the accused's plea and full cooperation, the fact that she was a mother of two young children, the fact that she was the main breadwinner of her family and the fact that her family home was due to be repossessed, this Court held that a custodial penalty was warranted in the circumstances. The Court varied the eighteen month custodial sentence by suspending the final six months of the sentence.

12 In DPP v Jacqueline Durcan [2017] IECA 3, this Court reduced a twelve month sentence to a six month sentence in circumstances where the accused, a former solicitor, had co-operated and pleaded guilty to a €250,000 fraud where the defrauded sum was ultimately paid back in full. Whilst acknowledging how difficult a prison sentence would be for a mother of five children, who lived in Belgium, it was held that a custodial sentence was appropriate in the circumstances.

13 In DPP v Nalia Zaffer No.1 [2016] IECA 321, this Court replaced a two and a half year suspended sentence with a two and a half year custodial sentence, the final eight months of which were suspended. The accused in that case was a senior insurance claims official who had stolen €221,600 over a six year period which was not recovered. The accused had pleaded guilty, co-operated with the Gardaí, had no previous convictions, had lost her job and had a drug addiction problem. Mahon J stated:

'In this case, the level of offending is very serious, given that it involved a sum of well over €200,000, and that it was a pre-meditated, well planned and carefully orchestrated fraud undertaken over a fairly prolonged period [...] Even allowing, to the greatest possible extent, for the appellant's strong mitigating factors, including her guilty plea and previous good record and her own difficult personal circumstances, the imposition of a wholly suspended prison sentence is not justified. Serious pre meditated fraud will almost always merit a custodial sentence.'

14 Whilst none of the above cases establish a binding precedent, it is submitted that...