DPP v Maguire

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date03 October 2018
Neutral Citation[2018] IECA 310
Docket NumberRecord No: 253/17
CourtCourt of Appeal (Ireland)
Date03 October 2018
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
v
SIOBHAN MAGUIRE
Appellant

[2018] IECA 310

Record No: 253/17

THE COURT OF APPEAL

Sentencing – Theft – Proportionality – Appellant seeking to appeal against sentences – Whether sentences were excessive and disproportionate

Facts: The appellant, Ms Maguire, on the 26th of October 2017, was sentenced to thirty-two concurrent sentences of four years’ imprisonment imposed upon her by Dublin Circuit Criminal Court, to date from that date. The imposition of those sentences followed her signed pleas of guilty to fifteen counts of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, a single count of larceny contrary to s. 2 of the Larceny Act 1916, a single count of forgery contrary to s. 2 of the Forgery Act 1913 and fifteen counts of fraud contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The thirty-two signed pleas were sample counts intended to be representative of 1,320 charges in total, arising out of the fraudulent negotiation of 660 individual cheques. The appellant appealed to the Court of Appeal against those sentences on the grounds that they were excessive and disproportionate having regard to all the circumstances of the case.

Held by the Court that, it was not convinced that the sentence was correct in circumstances where the sentencing judge’s reasoning did not adequately explain how she arrived at her sentence figure and where based on comparators it appeared that her sentence may be out of line with sentences imposed in other fraud cases. While the Court could not say for certain that her assessment of gravity and/or that her discount for mitigation was incorrect, it found that there were sufficient grounds for suspecting that the sentence was deficient in one or other respect, or possibly in both respects, justifying intervention. In the circumstances the Court would allow the appeal, quash the sentences imposed in the court below and proceed to re-sentence the appellant.

The Court held that, having taken into account the range of available sentences, the factors bearing on culpability and the harm done, it would assess the gravity of the appellant’s offending conduct as meriting a pre-mitigation or headline sentence of six years in the circumstances. The Court held that the substantial mitigation available in her case entitled her to a discount of not less than 50%. The Court was impressed to learn that she was doing well in custody. The Court felt that the appellant should be rewarded for that and incentivised to continue her positive engagement. The Court was also of the belief that the optimum balancing of competing penal objectives could best be achieved in the circumstances by some degree of further reduction. The Court held that it would suspend the final year of the three-year sentence imposed for a period of two years following her release on her entering into a bond in the sum of €100 to keep the peace and be of good behaviour during that period; the sentence was to date from the same date as the sentence imposed in the court below.

Appeal allowed.

Judgment of the Court delivered on the 3 rd of October, 2018 by Mr. Justice Edwards
Introduction:
1

On the 26 th of October 2017, the appellant in this appeal was sentenced to thirty-two concurrent sentences of four years’ imprisonment imposed upon her by Dublin Circuit Criminal Court, to date from that date. The imposition of these sentences followed her signed pleas of guilty; to fifteen counts of theft, contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001; a single count of larceny, contrary to s. 2 of the Larceny Act 1916, as amended by s.9 of the Larceny Act 1990; a single count of forgery, contrary to s.2 of the Forgery Act 1913; and fifteen counts of fraud, contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

2

These thirty-two signed pleas were sample counts intended to be representative of 1,320 charges in total, arising out of the fraudulent negotiation of 660 individual cheques. At the sentencing hearing, the court was informed that they were acceptable to the Director of Public Prosecutions on the understanding that the evidence at the sentencing hearing would be presented on a full facts basis.

3

The appellant now appeals to this Court against these sentences.

The evidence as to the facts
4

The appellant was employed as secretary and personal assistant to two professional people, who were members of the same profession, both of whom had offices in close proximity. Her duties and responsibilities were secretarial, administrative and accounting. In order to discharge her duties, the appellant had been given full access to her employers’ banking details, and she was required to lodge cheques received by them in discharge of professional fees due to them to their respective bank accounts, and to make appropriate book-keeping entries to record such receipts. The appellant would use an automatic teller machine (ATM) in a nearby branch of the Bank of Ireland to make such lodgements.

5

In March 2014, a Ms. Siobhan Gallagher, a bank official with Bank of Ireland who was acquainted with both injured parties from regular business dealings with them, took up a new position as Customer Service Assistant Manager at the branch of Bank of Ireland, at which the said ATM was located. Her responsibilities included customer service, administrative duties and the processing of cheques made at ATM's within the branch.

6

On the 8 th of March 2015, Ms. Gallagher was processing a batch of cheques which had been lodged via an ATM in the said branch, when it came to her attention that a cheque, in the amount of €3,382.50, lodged at 3.32pm by the appellant, but payable to one of her employers, had been lodged to the appellant's personal bank account. She compared this cheque to another one, in the amount of €615.00, lodged by the appellant on the previous day, which had been lodged to a different account. Ms. Gallagher became suspicious that something was not right, and brought the matter to the attention of her branch manager. He in turn referred the matter to the Bank of Ireland's internal fraud investigation department, who closely scrutinised the appellant's personal bank account with Bank of Ireland and discovered that a vast number of third party cheques had been lodged to that account since 2012, and that all of the third party cheques had initially been payable to her employers, the two injured parties. The cheques in question had all been endorsed by the appellant and lodged to her personal account rather than to the appropriate employer's account.

7

The injured parties were contacted and advised of the situation. They in turn met with the appellant and confronted her with the evidence, whereupon she tendered her resignation. The matter was subsequently reported to An Garda Síochána, who commenced an investigation.

8

The appellant was co-operative with the Garda investigation and attended at a Garda station for the purpose of being interviewed on seven occasions. She made full admissions, and it emerged that the offending conduct went back to 2001, involved the fraudulent negotiation of cheques through two banks, namely Bank of Ireland and Allied Irish Banks, spanned a fourteen year period and involved a sum of €1,187,616.07 in total.

9

No single transaction was for more than €5,000.00, and the loss was not split 50:50 between the two injured parties. One injured party was at the loss of €719,099.74 and the other was at the loss of €468,516.33. The first injured party secured compensation in civil proceedings for negligence of €120,000 from Bank of Ireland and €418,000 from Allied Irish Banks, leaving a deficit of €181,099 in his case. The second injured party also secured compensation from financial institutions totalling €323,849.93, leaving a deficit in his case of €144,660.40.

10

The appellant exhibits no trappings of wealth and the Garda investigation team was unable to determine exactly how the monies stolen were dissipated.

The impact on the victims
11

Neither injured party wished to make a victim impact statement. It was acknowledged on behalf of the appellant that the injured parties had treated her with great consideration, notwithstanding the breach of trust that had been uncovered. Although she was suspended from her employment once the thefts were suspected, the injured parties at first maintained that she was ill in order to protect her public reputation. They met with her privately and offered her the opportunity to explain what had been revealed to them. The appellant was unable to offer any explanation but indicated that she was very, very sorry. She later delivered a letter to the injured parties via an intermediary, acknowledging that she had betrayed them and again expressing remorse.

12

The injured parties have made it known that they do not wish to see the appellant sell her family home in order to repay them.

The appellant's personal circumstances
13

The sentencing court heard that the appellant was born on the 5 th of March 1970, and was 47 years of age at the time of her sentencing. She has two children and lives with them in a suburban home in Skerries. This family home was financed by a mortgage which is currently in arrears. The appellant was in a nineteen year relationship with a man, the father of her two children, and has been estranged from him for some time. They met in Australia and although they never married, they lived together until he left the family home in December of 2014. The relationship was described by counsel as being “very fractured”. It was suggested that the appellant's estranged partner had been very controlling of the appellant, had subjected her to domestic abuse and had deprived her of funds for the children and their...

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5 cases
  • DPP v D.M.
    • Ireland
    • Court of Appeal (Ireland)
    • 13 May 2019
    ...upon comparators. We have previously emphasised that it is important that comparators are correctly used. In People (DPP) v. Maguire [2018] IECA 310 we commented that: 97. Comparators are a useful tool in sentencing cases, both at first instance and at appellate level, providing that their......
  • DPP v Moran
    • Ireland
    • Court of Appeal (Ireland)
    • 22 January 2019
    ...little ultimate assistance. It is worth recalling that recently, in the case of The People (Director of Public Prosecutions) v Maguire [2018] IECA 310, we said: ‘97. Comparators are a useful tool in sentencing cases, both at first instance and at appellate level, providing that their limit......
  • The People (At the Suit of the DPP) v Emma Fehily
    • Ireland
    • Court of Appeal (Ireland)
    • 26 July 2021
    ...on sentencing for what might loosely be described as “white collar crime” in The People (Director of Public Prosecutions) v Maguire [2018] IECA 310. 25 While on the subject of possible comparators, while neither side referred us to any caselaw concerning sentencing for attempting to pervert......
  • DPP v Boyle
    • Ireland
    • Court of Appeal (Ireland)
    • 13 May 2019
    ...have come before this Court in recent times. A comprehensive review of the decisions in this area was undertaken in the case of DPP v. Siobhan Maguire. In the course of the judgment of the Court delivered by Edwards J. at p. 24, he made the following observations having reviewed a large num......
  • Request a trial to view additional results

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