DPP v Stokes

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 20 July 2018
• Neutral Citation: [2018] IECA 324
• Docket Number: 195CJA/2017
• Court: Court of Appeal (Ireland)
• Date: 20 July 2018

[2018] IECA 324

THE COURT OF APPEAL

McCarthy J.

Birmingham J.

Hedigan J.

McCarthy J.

195CJA/2017

The People (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT/PROSECUTOR

- AND -

JOHN STOKES

APPELLANT/DEFENDANT

Sentencing – Theft – Mitigating factors – Appellant seeking review of sentence – Whether the trial judge gave undue weight to the mitigating factors

Facts: The appellant, the Director of Public Prosecutions, appealed to the Court of Appeal seeking a review in relation to a suspended sentence of four and a half years imposed on the respondent, Mr Stokes. He pleaded guilty to 46 counts out of 343 counts of theft. The 46 counts were on the basis that the entirety of his criminality would be taken into account and were accordingly sample counts. They pertained to a period from the 2nd July 2008 to the 11th December 2013. The respondent had claimed so-called jobseekers allowance of €55,543 during that period and also a rent allowance of €54,916. He had rented a house at Sallins, Co. Kildare for the purpose of perpetrating his fraud. He adopted the identity of a person who he knew was living outside the jurisdiction and obtained his birth certificate. At the time he was already in receipt of disability benefit in his own right at his true home. The respondent, after his sentence, pursuant to a term of the suspension imposed by the Circuit Court judge, repaid €4,000 within the period specified in that order. Subsequently the sum of €2,000 was repaid by way of withholding on the payment owed to the respondent by the Department of Social Welfare. For a significant period he paid €28 per week from the social welfare receipts. The Director's application was based upon the proposition that the trial judge gave undue weight to the mitigating factors which were present including the fact that the respondent had suffered from depression, giving rise to the disability payment, was not at risk of offending in the future, had made full admissions which were of considerable benefit to the prosecution, had expressed remorse and pleaded guilty.

Held by the Court that whilst there were significant mitigating factors there were no exceptional circumstances that would justify complete suspension of the sentences notwithstanding the minimal or modest nature of the discrepancy between the involvement of the respondent and his wife and sister. The Court thought that, in the circumstances, the Director had made out the case that the sentence was unduly lenient insofar as it was suspended in its entirety. The Court took the view that the sentencing court would have been justified in partially suspending the sentence had it decided to suspend the final two years thereof but not the entirety.

The Court held that, having regard to the subsequent payment of €2,000, that the respondent was put in a position of having to go into custody, the fact that there were continuing deductions from his social welfare payments and the payment of an additional €2,000, in the circumstances it would vary the order by providing for a suspension of only three years (on the same terms); thus he would serve 18 months in custody.

Appeal allowed.

JUDGMENT ( ex tempore) of the Court delivered on the 20th day of July 2018 by Mr. Justice McCarthy

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