DPP v McAuley

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 09 June 2016
• Neutral Citation: [2016] IECA 173
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: CJA309/15
• Date: 09 June 2016

Sheehan J.

Mahon J.

Edwards J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

v

AMY McAULEY

Respondent

[2016] IECA 173

Edwards J.

Record No: CJA309/15

THE COURT OF APPEAL

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

Facts: The respondent, Ms McAuley, was an employee of Nordzucker Ireland Ltd based in the Sandyford Industrial Estate in Dublin. She was employed as a credit controller within that company.?Between July 2013 and February 2014 the respondent stole a total of ?132,355.20 from her employer. Three concurrent sentences of two years imprisonment, each of which was suspended for ten years upon conditions, were imposed upon the respondent by Dublin Circuit Criminal Court on the 30th of November 2015 following her pleas of guilty to three counts of theft, contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. In addition to the standard conditions imposed when a sentence or sentences is or are being suspended, the suspension of the respondent?s sentences was also made conditional on her making full restitution to the injured party within the period of the suspension. The amount of required restitution was of the order of ?102,355.20 representing ?132,355.20 (being the sum of the three amounts stolen i.e. ?44,220.10, ?66,765.10 and ?21,307.00) less ?10,000 restitution made in advance of the trial and a further ?20,000 restitution paid over on the day of the sentence hearing. The applicant, the DPP, applied to the Court of Appeal seeking a review of the sentences pursuant to s. 2 of the Criminal Justice Act 1993?on the grounds that the sentences were unduly lenient. It was submitted that the sentencing judge erred in principle in failing, when imposing sentence, to give adequate weight as an aggravating factor to the substantial amount of money that was stolen from her employer. It was further submitted that the suspended sentence was inappropriately structured because it failed to provide for any sums to be paid periodically, rendering it difficult to monitor the respondent?s compliance with the condition of her suspended sentences as regards the making of restitution.

Held by Edwards J that, having considered the full circumstances of the case and the trial judge?s remarks at sentencing, he was not satisfied that it discloses any manifest error of principle resulting in a sentence that was unduly lenient in the sense of being a clear divergence from the norm.

Edwards J held that the sentence imposed was not unduly lenient and the Court dismissed the application. However, the Court, of its own motion, interfered to modify that condition of the suspension of the respondent?s sentences providing for the making of restitution, so as to require that 30% of the required sum should be paid on or before the expiration of five years of the suspended period; that a further 30% of the required sum should be paid on or before the expiration of seven and a half years of the suspended period; and that any balance outstanding thereafter be paid on or before the expiration of the remainder of the ten year suspended period.

Appeal dismissed.

Judgment of the Court (ex tempore) delivered the 9th day of June, 2016 by Mr. Justice Edwards

Background to the Appeal:

1 In this case the applicant seeks a review pursuant to section 2 of the Criminal Justice Act 1993 (the Act of 1993) of three concurrent sentences of two years imprisonment, each of which was suspended for ten years upon conditions, which sentences were imposed upon the respondent by Dublin Circuit Criminal Court on the 30th of November 2015 following her pleas of guilty to three counts of theft, contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, on the grounds that the said sentences were unduly lenient.

2 In addition to the standard conditions which are invariably imposed when a sentence or sentences is or are being suspended, the suspension of the respondent's sentences was also made conditional on her making full restitution to the injured party within the period of the suspension.

3 The amount of required restitution was of the order of ?102,355.20 representing ?132,355.20 (being the sum of the three amounts stolen i.e ?44,220.10, ?66,765.10 and ?21,307.00) less ?10,000 restitution made in advance of the trial and a further ?20,000 restitution paid over on the day of the sentence hearing.

The facts

4 The facts of the case are succinctly summarized in the applicant's written submissions and the Court proposes to adopt that summary for the purposes of this ex tempore judgment. Garda Jamie Nolan gave evidence that the respondent was an employee of a company called Nordzucker Ireland Limited based in the Sandyford Industrial Estate in Dublin. Count 1 on the indictment occurred on the 23rd July, 2013 and involved the theft of ?44,220.10. Count 3 occurred on the 30th July, 2013 and involved the theft of ?66,765.10 and count 5 referred to the 26th February, 2014 and involved the theft of ?21,307. As previously stated the total amount stolen was ?132,355.20.

5 The respondent had obtained a job with Nordzucker Ireland Limited on a short term contract replacing an employee who was on maternity leave. She was employed as a credit controller within that company. She was involved in the processing of invoices and contacted employees from Lakelands Dairies Limited asking them to discharge invoices presented to them by the respondent on behalf of Nordzucker Ireland limited.

6 Ms. Emily McInerney who was an employee of Lakelands Dairies Limited and who had worked with that company up until the 6th September, 2014, was tasked with processing invoices due to paid by Lakelands Dairies Limited and with making payments to company suppliers, one of which was Nordzucker Ireland Limited. Ms. McInerney had indicated that she had received an email from the respondent on the 23rd July, 2014, stating that due to a problem, Nordzucker Ireland Limited had temporarily changed banks from Bank of Ireland to Allied Irish Banks for receipt of payments from debtors. The respondent provided Ms. McInerney with new account details in respect of an account with Allied Irish Banks. Although this was not apparent to Ms McInerney, the details provided did not in fact relate to any account with Allied Irish Banks held by Nordzucker Ireland Limited but instead related to a personal account in the name of the respondent with that bank. On receipt of the new bank account details Ms. McInerney updated the bank account details for Nordzucker Ireland Limited on the Lakelands Dairies Limited computer system and she then processed two payments to Nordzucker Ireland Limited, the first on the 23rd July, 2013 for an amount in the sum of ?44,220.10, and the second on the 30th July, 2013 for an amount in the sum of ?66,765.10. These payments were lodged to the new bank account, the details of which had been provided to her by the respondent.

7 On the 6th August, 2014, the respondent emailed Ms. McInerney to say that the problem with the bank account details had been sorted out and that Nordzucker Ireland Limited was reverting to the old Bank of Ireland account.

8 A Ms. Sarah Brady subsequently took over from Ms. McInerney at Lakelands Dairies Limited and she recalled an occasion, i.e., the 25th February, 2014, when a further email was received from the respondent. This e-mail asked that Lakeland Dairies Limited would once again discharge a supplier invoice by making a payment to the Allied Irish Bank account rather than the Bank of Ireland account. A payment was subsequently paid into the respondent's account at Allied Irish Banks in the sum of ?21,307 on the 26th February, 2014.

9 All of these matters came to light as a result of other companies within the Nordzucker Ireland Group auditing their accounts. By this time the respondent had left employment with Nordzucker Ireland Limited. The respondent's father made a statement to the gardaí informing the gardaí that the respondent had got a new job in and around March 2014, as her contract had expired with Nordzucker Ireland Limited. The respondent had called to see her father to explain to him what she had done and that she wanted to go to the garda station to hand herself in. The respondent asked her father to contact the CEO of Nordzucker Ireland Limited and to inform him as to what she had done. Her father duly met the CEO of Nordzucker Ireland Limited and apprised him of the situation and the CEO in turn contacted the gardaí who on the 5th April, 2014, arrested the...