DPP -v- Paul Murray

JurisdictionIreland
JudgeMr. Justice Finnegan
Judgment Date27 February 2012
Neutral Citation[2012] IECCA 60
Docket Number[2011 No. 178 C.C.A.]
CourtCourt of Criminal Appeal
Date27 February 2012

[2012] IECCA 60

THE COURT OF CRIMINAL APPEAL

Finnegan J.

Moriarty J.

Hogan J.

[No. 178 CCA/2011]
DPP v Murray
BETWEEN/
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT

AND

PAUL MURRAY
APPELLANT

PASSPORTS ACT 2008 S20(1)(B)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2011 S4

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.45

DPP v BARNES 2006 IECCA 165 2007 3 IR 130

CONSTITUTION ART 9(2)

CRIMINAL LAW

Sentence

Social welfare fraud - False passport - Totality principle - Nature of offence - Offences involving public revenue - Custodial sentence - People (DPP) v Barnes [2006] IECCA 165, [2007] 3 IR 130 considered - Passports Act 2008 (No 4), s 20(1)(b) - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), s 4 - Sentence reduced (2011/178CCA - CCA - 27/2/2012) [2012] IECCA 60

People (DPP) v Murray

1

1. This appeal against the severity of a sentence imposed in respect of social welfare fraud raises an issue of fundamental importance at a time of crisis for the public finances. How should a sentencing court treat offenders who have defrauded the public revenue by either engaging in unlawful tax evasion on the one hand or (as in this case) by making false social welfare claims on the other? Given the intrinsic importance of such questions for the public weal - not least at a time of financial emergency - it seems appropriate that this Court should now give some general guidance for future cases of this kind given that prosecutions for tax evasion and welfare fraud are likely to be a more common feature of the criminal justice landscape in the years ahead than may have been the case heretofore.

2

2. Before embarking on this exercise, it is necessary first to narrate the background facts to this application. The appellant, Mr. Murray, was charged with one count of having a false passport, contrary to s. 20(1)(b) of the Passports Act 2008, and seventy four counts of theft, contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2011. In respect of the theft offences Mr. Murray stood charged that on various individual dates between 2006 and 2010 he dishonestly appropriated sums of money ranging from €165.80 to €408.60 from the Department of Social Protection.

3

3. At a hearing before the Circuit Court on 21 st July 2011 (His Honour Judge Anthony Kennedy), the appellant pleaded guilty to the false passport charge (count 1), and to twenty five sample counts of social welfare fraud. The appellant received a prison sentence of three years on the false passport charge and at the hearing before this Court counsel for the appellant, Mr. Byrne, fairly conceded that that sentence was unobjectionable in principle. However, the appellant strongly objects to the severity of the sentence imposed in respect of the twenty five sample fraud charges, since Judge Kennedy here imposed a sentence of 6 months in respect of count 2 on the indictment concurrent with the sentence imposed on count 1, followed by twenty four sentences of 6 months' imprisonment, all of them running consecutively to each other and concurrent to the sentence imposed on count 1. In sum, therefore, the appellant received a sentence of 12 and one half years. The sentences were expressed to commence on the date he went into custody, namely, 19 th October 2010.

4

4. The appellant is now 63 years old. He is a former carpenter, but since 1995 he has treated Thailand as his adopted home. He lived there with his partner in an apartment to which he contributed 40% of the purchase moneys. Over the last number of years the appellant conceived an elaborate and sophisticated social welfare fraud, which was said by a very experienced investigating officer, Ms. Patricia Mulloy, to be the largest fraud of its kind uncovered to date. During this period the appellant misappropriated sums of an aggregate marginally less than €249,000 by making diverse claims for jobseeker's allowance, disability allowance and supplementary welfare allowance, in the name of nine different identities, including members of his own family.

5

5. The fraud originally came to light when staff at the Passport Office in Dublin received an application for a passport which had been transmitted from the Embassy in Canberra. That application was in the name of a younger brother of the appellant. It was noticed that a passport bearing these details had already been issued in that name in 2005. The file for that passport was checked and it emerged that the picture on that passport was that of the appellant. The appellant held another (perfectly legitimate) Irish passport.

6

6. Further investigations revealed that the appellant had been receiving disability allowance in the name of that younger brother. The records of the Department of Social Protection were then examined, and these showed that payments were made into several different banks accounts in the name of either the appellant or one of his siblings, which the appellant had opened using false identity documents such as driving licences. It is important to stress here that the appellant simply stole the identities of his brothers and that they are completely innocent parties so far as this fraud is concerned. Insofar as remorse was expressed by the appellant in the course of investigations, it appeared limited to the distress occasioned to those family members.

7

7. The appellant was arrested by Garda Peter Kelly when he presented and signed a claim form for jobseekers' allowance in the name of one of his brothers at a social welfare office in October 2010. Following a search of his van, a large variety of false identity documents were uncovered. These included social services cards issued by the Health Service Executive, welfare cards for both jobseekers and disability payments, bus passes, medical cards and false British driving licences issued in various different names. A false British passport, bearing the appellant's photograph, but which had been issued in the name of one of the appellant's brothers, was also found. These identity documents had been deployed by the appellant, so to speak, in prêt-à-porter style to suit the occasion or, perhaps it would be more correct to say, the social welfare office he was attending at any given time.

8

8. The appellant resorted to a variety of different plans and schemes to achieve his ends. He admitted to Gardai that many of the false documents - specifically false British driving licences and a false British passport - had been purchased in Thailand on the black market. The false British licences all bore the correct dates of birth for the correct individuals whose identity had been misappropriated by the appellant. To this end the appellant identified persons who he knew had emigrated permanently from Ireland. He then obtained their birth details and other details, such as their mother's maiden name. Armed with this information, he then went to the office of the Registrar of Births, Marriages and Deaths and, following the payment of a small fee,...

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2 books & journal articles
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