DPP v McMulkin

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Edwards
Judgment Date10 Nov 2016
Neutral Citation[2016] IECA 335
Docket NumberRecord No 52/16 Bill Nos CW 18/15, CW 19/15, & CW 20/15

[2016] IECA 335

THE COURT OF APPEAL

Edwards J.

Ryan P.

Mahon J.

Edwards J.

Record No 52/16

Bill Nos CW 18/15, CW 19/15, & CW 20/15

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

BETWEEN:
THE PEOPLE OF THE SUIT DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
-AND-
JAMES McMULKIN
RESPONDENT

Sentencing – Theft – Undue leniency – Applicant seeking review of sentences – Whether sentences were unduly lenient

Facts: The respondent, Mr McMulkin, pleaded guilty before Carlow Circuit Criminal Court to two counts of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 on Bill No CW 18/15, one count of theft contrary to s. 4 on Bill No CW 19/15 and one count of theft contrary to s. 4 on Bill No CW 20/15. The respondent was sentenced to two years imprisonment, but conditionally suspended for two years, on each of the counts in Bill No CW 18/15, to run concurrently. In addition, he was further sentenced to two years imprisonment, but conditionally suspended for two years, on the count in Bill No CW 19/15, to run concurrently with the sentences imposed on the counts in Bill No CW 18/15. In addition, the count on Bill No 20/15 was taken into consideration. The applicant, the DPP, applied to the Court of Appeal seeking a review of the sentences imposed on the counts in all three Bills pursuant to s. 2 of the Criminal Justice Act 1993 on the grounds that the said sentences were unduly lenient. It was complained that the sentencing judge erred in placing the offences at the lower end of the scale. In doing so, the applicant said that the sentencing judge failed to adequately take into account the significant aggravating factors in the case. The applicant pointed in that regard to the fact that the offences occasioned not insignificant losses to the retailers concerned; to the fact that the sheer number of identical offences both in the Republic of Ireland and in Northern Ireland was indicative of a systemic type of offending i.e., that the crimes were the subject matter of a certain amount of pre-planning and organisation and were not opportunistic; and to the fact that the respondent had previous convictions in Northern Ireland for 52 similar instances of offending and had served a sentence of nine months imprisonment there. It was complained that the sentencing judge attached undue weight to mitigating factors. In particular, it was suggested that the court was swayed by the claim that the respondent’s wife “needed him”. It was submitted that where the respondent’s wife resided in a nursing home in Kildare and the respondent resided outside the jurisdiction, in Northern Ireland, the extent to which it could be said that the respondent was a carer for his wife was very limited. Moreover, it was said that the claim that he was needed to care for his wife was not supported by any medical evidence or documentary evidence from her day to day carers. It was also complained that the court erred in approaching mitigation as a separate and distinct matter to rehabilitation.

Held by Edwards J that he found no error in the trial judge’s approach to the assessment of the seriousness of the offences. Edwards J noted that the sentencing judge determined that the offences, before any allowance for mitigating factors, merited a headline sentence of two years imprisonment in the particular circumstances of the case. This determination, while arguably a lenient assessment, was held to be not so lenient as to have been outside of her legitimate margin of appreciation. Edwards J held that while the sentencing judge’s decision to reflect the mitigating circumstances in the case by suspending the sentence of two years that she had otherwise determined upon, and thereby in her words to “give him a chance”, was unquestionably lenient, the Court was not satisfied that it was so extraordinarily lenient as to represent a clear divergence from the norm and an error of principle as such. The Court was not therefore prepared to uphold the complaint that the judge gave too much weight to the mitigating factors in the case. Edwards J held that in circumstances where the sentencing judge had considered it appropriate that the respondent should have the benefit of some degree of doubt on the issues raised in the medical evidence, unsatisfactory though that evidence was, he considered that the lenient headline sentence determined upon, and the lenient ultimate sentence imposed, could both be more readily justified than if those circumstances had been absent.

Edwards J held that he would dismiss the application for a review.

Appeal dismissed.

Judgment of the Court delivered 10th of November, 2016 by Mr. Justice Edwards
Introduction:
1

In this case the respondent pleaded guilty before Carlow Circuit Criminal Court to two counts of theft, contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 on Bill No CW 18/15; one count of theft, contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 on Bill No CW 19/15 and one count of theft, contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 on Bill No CW 20/15.

2

The respondent was sentenced to two years imprisonment, but conditionally suspended for two years, on each of the counts in Bill No CW 18/15, to run concurrently. In addition, he was further sentenced to two years imprisonment, but conditionally suspended for two years, on the count in Bill No CW 19/15, to run concurrently with the sentences imposed on the counts in Bill No CW 18/15. In addition, the count on Bill No 20/15 was taken into consideration.

3

The applicant now seeks a review of the sentences imposed on the counts in all three Bills pursuant to section 2 of the Criminal Justice Act 1993 (the Act of 1993) on the grounds that the said sentences were unduly lenient.

The Facts
4

The facts of the case can be very simply stated. The modus operandi of these crimes was the same in each and every case. The respondent would attend at a hardware shop, or power tool shop or other equipment retailer and express interest in buying a power tool or piece of equipment on behalf of an absent third party principal such as his son, or his son-in-law, or an elderly neighbour, for whom he was supposedly acting as agent. He would then say he could not complete the purchase without first of all ringing his principal, and would then make a telephone call in the presence of the retailer to the supposed principal, in the course of which the person at the other end would ostensibly agree to the purchase and provide with him with credit card details which he would then furnish in turn to the retailer. The retailer would then process a credit card transaction for the appropriate amount and the respondent would then leave with the goods.

5

In all cases the credit card transaction was provisionally authorised by the credit card company, indicating that the details provided to the retailer related to a legitimate credit card, but was later countermanded following the cardholder discovering, and reporting to the credit card company, that he or she was being billed for a purchase that they didn't make. While the cardholders were re-imbursed, the retailers were in each instance left carrying the loss in circumstances where they had each failed to request and obtain from the respondent the appropriate three digit card security code that would have appeared on the back of the relevant credit card.

6

The losses in the case of the counts on Bill No CW 18/15 were € 380 for a Milwaukee drill and €699 for a Stihl chainsaw respectively. The loss in the case of the count on Bill No CW 19/15, was €1250 for a Stihl chainsaw and the loss in the case of the count on Bill No CW 20/15 was €900 for a Stihl petrol consaw.

7

Following detection of these crimes the respondent claimed at interview, and indeed later in evidence at the sentence hearing, that his accomplice, i.e. the supposed principal at the other end of the telephone, was a Romanian gentleman called ‘Joe’, by whom, following some initial chance encounters, he had been recruit. He said that this Joe has asked him ‘would you do a few jobs’ and that he had simply agreed.

The respondent's personal circumstances
8

The respondent was born on the 23rd of January 1950 and accordingly was just over 66 years of age at the date of his sentencing, and was 64 years of age when the offences were committed.

9

The respondent is married since 1973 and he has two adult daughters. His wife is presently in a nursing home, but was well enough to give evidence on his behalf at the sentencing hearing and did so. The respondent is estranged from his daughters as a result of his acquiring criminal convictions in recent years in these matters, and a number of other matters in Northern Ireland.

10

The respondent worked for more than thirty years as a digger driver and has an impressive employment history with a number of large and well known contractors engaged in motorway and road construction. He had risen to the rank of foreman and was seemingly trusted and was well regarded by his employers. He worked continuously on a variety of civil engineering projects up until 1989 when he suffered a devastating accident at work. It seems that an iron bar penetrated his skull from a height going through his left eye and out the back of his skull. After treatment of his acute injuries, in the course of which he underwent several surgeries and was fitted with a prosthetic eye at the Royal Victoria Eye and Ear Hospital in Dublin, he seemingly spent a lengthy period of further time recovering from his head injury at the National Rehabilitation Centre in Dun Laoghaire. He has never returned to his former work, the accident precipitating an enforced retirement.

11

Up until his retirement the respondent had never been in trouble. However, all of sudden in...

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