DPP v Lawlor

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Hedigan
• Judgment Date: 17 July 2018
• Neutral Citation: [2018] IECA 243
• Docket Number: 188CJA/2017
• Date: 17 July 2018

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPELLANT

AND

GERARD LAWLOR

RESPONDENT

[2018] IECA 243

188CJA/2017

THE COURT OF APPEAL

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

Facts: The respondent, Mr Lawlor, came before the Dublin Circuit Criminal Court on charges in relation to significant social welfare fraud. On the 15th of June 2017, following an early guilty plea, the respondent was given a wholly suspended three year sentence for the offences involving 11 counts of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. 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 the grounds of undue leniency. The appellant submitted that the sentencing judge: a) erred in principle in failing to attach sufficient weight to the fact that the respondent had provided inaccurate information to his probation officer on a matter of importance relating to his financial circumstances during the period within which the offences were committed; b) erred in principle in the manner in which she structured the sentence imposed by applying insufficient weight to the aggravating features of the case and/or undue weight to the mitigating factors present; c) erred in principle by imposing penalties which failed to adequately reflect the principle of general deterrence.

Held by the Court that, allowing a substantial margin of discretion to the sentencing judge, it could find no basis for intervening in this case. The Court noted that the point of departure for the sentencing judge was a custodial sentence and she clearly recognised that; she then explained why she considered there were exceptional circumstances justifying her departure from the norm, based upon the extremely difficult circumstances of the respondent’s two sisters.

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

The Appeal

1 This is an application brought by the Director of Public Prosecutions pursuant to s.2 of the Criminal Justice Act, 1993 on the grounds of undue leniency in relation to the sentence imposed on the respondent in the Dublin Circuit Criminal Court on the 15th of June 2017.

Background

2 The respondent came before the court on charges in relation to significant social welfare fraud. Following an early guilty plea, the respondent was given a wholly suspended three year sentence for the offences involving 11 counts of theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The offending took place over a number of years; December 2005 to May 2015.

3 The offences came to light after a company owned and operated by the respondents' former wife was subject to a standard Revenue audit. Over the course of the audit, the respondents' former wife provided Revenue with certain information, including that she had been separated from her partner, the respondent, for approximately five years. According to Revenue she was treated as a single assessment for income tax purposes.

4 The computerised system connecting the Revenue Commissioners and the Department of Social Protection showed however that the respondent was receiving a payment that required him to be living with his partner. It transpired that the respondent was in receipt of Jobseekers Allowance, although it appeared that he was in business until sometime in 2008. He was also receiving the Adult Dependant Allowance in respect of his former wife, despite the fact that he was not living with her during this time, and that she was receiving a separate income. The respondent also claimed the Pre-Retirement Allowance, a benefit which may be available to those aged 55 or over and have left the work force, despite his being self-employed during some of this period. During this time, the respondent also received rent payments from the Department of Social Protection on behalf of tenants who lived in a property in Ballycullen which he owned. Further investigation showed that the respondent sold and purchased properties during this period.

5 It was calculated that the respondent had fraudulently obtained €167,873.90 from the Department of Social Protection.

Personal Circumstances of the Respondent

6 The respondent was 67 years old at the time of sentencing. He had no previous convictions. He had been self-employed, by way of running businesses including a garage and repairs workshop.

7 The respondent is separated from his former wife and has three grown up children. He was a co-owner of a property in Ballycullen, County Dublin, but fell into arrears and repossession proceedings of the property had commenced at the time of conviction. He has been living in a house owned by his sister. Evidence was heard and accepted that the respondent has been a carer to his sisters, one of whom, Elizabeth, suffers from a serious disability. His other sister, who also has health issues, stated that they rely on him greatly. The respondent himself has also had periods of ill health, having suffered from prostate cancer, depression, and hypertension.

8 The respondent cooperated with Garda investigations surrounding the offence and entered an early plea of guilty. At the time of sentencing, the respondent provided €11,000 which he had raised to repay the Department of Social Protection. He has been living on the State pension, reduced by €28.20 per week by way of repayment to the Department.

Sentence

9 The court identified a headline sentence of four years. The respondent received a wholly suspended sentence of three years for counts 1, 3, 5, 7, 9 and 11 on the indictment, on condition that he enter a bond of €300, keep the peace, and be of good behaviour for that period. He was considered to be at low risk of reoffending, and was not placed under the supervision of the Probation Service.

10 In terms of aggravation, the court noted that the offending took place over a long period of time, the first count in respect of a date in December 2005 and the last count in May 2015. The respondent claimed a number of social protection payments, resulting in a significant loss of funds to the Department of Social Protection during this time. Furthermore, the respondent was described as ‘less than fully candid’ in his response to questions put to him by the Probation Service.

11 In mitigation, it was pleaded that the respondent was 67 years of age with no previous convictions, had offered an early plea of guilty, and accepted full responsibility for his offences. It was accepted that the respondent has made efforts to reimburse the exchequer by borrowing the sum of €11,000 and was living off a reduced State pension. The court was very conscious of the impact that a custodial sentence would have on the respondent's sisters, who are reliant on the respondent for their care. The court also acknowledged the previous ill health of the respondent himself. With regard to his specific personal circumstances, the court held that a custodial sentence would not be appropriate.

Grounds of Appeal

12 The appellant submits the following grounds of appeal in that the sentencing judge:

a) erred in principle in failing to attach sufficient weight to the fact that the respondent had provided inaccurate information to his probation officer on a matter of importance relating to his financial circumstances during the period within which the offences were committed.

b) erred in principle in the manner in which she structured the sentence imposed by applying insufficient weight to the aggravating features of the case and/or undue weight to the mitigating factors present.

c) erred in principle by imposing penalties which failed to adequately reflect the principle of general deterrence.

Submissions of the Appellant

13 The appellant submits that the court failed to attach sufficient weight to the fact that the respondent had provided a significant amount of inaccurate information to the Probation Service and came before the court with a series of dishonesty offences committed over a number of years. The appellant submits that the respondent had been untruthful to the Probation Service about:

a) The fact that he was operating a business between 2005-2008.

b) That approximately €300,000 had been entered into his accounts between 2005-2008.

c) That tenants had been living in a property of which he owned and had been receiving rent from the Department of Social Protection of behalf of the tenants while simultaneously receiving social welfare payments in respect of himself.

It is submitted that the wilful misleading of a probation officer and a long series of dishonest offences is a significant aggravating factor which was not reflected in the sentence imposed and amounted to an error in principle.

14 The appellant submits that the court applied insufficient weight to the aggravating factors and/or undue weight to those of mitigation in this case. With regard to aggravating factors, the appellant refers to the cases of DPP v Paul Murray [2012] IECCA 60, whereby the accused made fraudulent claims for €249,000 by using a number of aliases while living in Thailand. A sentence of 12 ½ years was reduced to nine years by the Court of Criminal Appeal, on account of the offenders' cooperation with the investigating authorities and his offer of a guilty plea. Finnegan J, after emphasising the seriousness of the consequences of such an offence, stated:

‘We therefore suggest for the future guidance of sentencing courts that significant and systematic frauds directed upon the public revenue - whether illegal tax evasion on the one hand or social security fraud on the other - should generally meet with an immediate and appreciable custodial...