DPP v Lynch

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 11 January 2018
• Neutral Citation: [2018] IECA 1
• Docket Number: [No. 275 of 2017]
• Court: Court of Appeal (Ireland)
• Date: 11 January 2018

[2018] IECA 1

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Edwards J.

Hedigan J.

[No. 275 of 2017]

The People at the Suit of the Director of Public Prosecutions

Respondent

And

Lisa Lynch

Appellant

Sentencing - Mitigation - Severity of sentence - Appellant seeking to appeal against sentence - Whether sentence was unduly severe

Facts: The appellant, Ms Lynch, was a director of a struggling company called AGL Logistics. With a view to keeping it afloat, she issued 93 false invoices and on foot of those false invoices payments were made by Billy Financial Services. They ended up at a loss of €460,662. On foot of a plea of guilty, the appellant was sentenced to 18 months imprisonment on 12th December, 2017 in the Dublin Circuit Criminal Court. She appealed to the Court of Appeal against severity of sentence, placing emphasis on the failure to nominate a headline sentence. It was said that this amounted to an error in principle which would justify, indeed require, the Court to embark on the task of resentencing in the circumstances of the case.

Held by the Court that the failure to identify a headline sentence coupled with the fact that there was no mention of the pattern of working and saving compensation, and the failure to address the assertion that if there had to be a custodial sentence that the appellant would be advantaged by a sentence of 12 months or less, and disadvantaged by one of 12 months or more, persuaded the Court that it should intervene.

The Court held that, absent the mitigating factors that were present, the case would have merited a sentence of five years imprisonment. Having identified the mitigating factors, the Court mitigated the sentence to one of 18 months imprisonment. However, given the combination of the really powerful mitigating factors that were present in the case, and so that there could be no room for doubt but that those factors were recognised and were being given full credit, the Court suspended the final six months of that 18 months.

Appeal allowed.

JUDGMENT of the Court (ex tempore) delivered on the 11th day of January 2018 by Mr. Justice Birmingham

1 This is an appeal against severity of sentence. The sentence under appeal is one of 18 months imprisonment that was imposed on 12th December, 2017 in the Dublin Circuit Criminal Court. After sentence was pronounced, the judge ceded to a request on behalf of the appellant to defer the commencement of the sentence until the new year. The result is that the appellant has appeared before this Court on bail and in a situation where she has not been in custody at any stage.

2 The background to the sentence hearing in the Circuit Court, which was a sentence hearing that took place on foot of a plea of guilty, is that the appellant was a director of a company called AGL Logistics. This was a company involved in the transport business, based in rural Kildare, though it has a number of depots around the country, and it employed some 70 people. That company had a relationship with a financial services company called Billy Financial Services and that relationship saw the financial services company paying 80 per cent of invoices that were issued by AGL Logistics by way of a loan or an advance.

3 The situation is that AGL Logistics was a struggling company and, with a view to keeping it afloat, Ms Lynch issued 93 false invoices and on foot of those false invoices payments were made by Billy Financial Services. They ended up at a loss of €460,662.

4 By way of further background, it should be explained that the circumstances in which the appellant effectively found herself in charge of the company, and therefore in a position to do what she did, were unusual. In June 2010 the appellant gave birth to her son by Caesarean section. Two days later, her husband was diagnosed with a rare form of mouth cancer. He became seriously depressed and he withdrew from the running of the company - he had previously been the mainstay of the company having, it seems, inherited it from his father. Some ten days after giving birth, the appellant took over the entire running of the company. It was accepted during the course of the sentence hearing by the investigating Gardai that she was ill-equipped for this task and that she was really quite out of her depth. The company struggled to survive. The appellant invested a sum of €100,000, her own money, with a view to keeping the company in business and borrowed a further sum of €100,000 from her father for this purpose before resorting to the criminal activity which led to the charges before the Court.

5 In terms of her background and circumstances, she was born on 6th June, 1984 and she was 33 years of age therefore at the time of the sentence hearing. At the time of the offending which occurred over a period of approximately six months between May and October, 2011, she was 27 years of age. She is the mother of two children, two sons, aged three and seven. Because of her husband's difficulties she is, and is likely to remain, the main breadwinner in the family. The family financial situation is a very difficult one, her husband is now on a back-to-work scheme, they have substantial debts and the family home is due to be repossessed in April. The plea of mitigation in the Circuit Court stressed the co-operation that was forthcoming, the appellant was questioned about what was happening, by a representative of Billy Financial Services...