DPP v Zaffer

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 28 October 2016
• Neutral Citation: [2016] IECA 321
• Docket Number: Record No.: 148/2016
• Court: Court of Appeal (Ireland)
• Date: 28 October 2016

In the Matter of an Application pursuant to Section 2 of the Criminal Justice Act 1993

Between/

The People at the Suit of the Director of Public Prosecutions

Appellant

- and –

Naila Zaffer

Respondent

[2016] IECA 321

Mahon J.

Birmingham J.

Sheehan J.

Mahon J.

Record No.: 148/2016

THE COURT OF APPEAL

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

Facts: The respondent, Ms Zaffer, pleaded guilty to ten counts, of which three were of making a false instrument contrary to s. 25 of the Criminal Justice (Theft and Fraud Offences) Act 2001, three were of using a false instrument contrary to s. 26 of the Criminal Justice (Theft and Fraud Offences) Act 2001, three were of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and one was of attempted theft contrary to common law. On 11th May 2016, the respondent was sentenced to concurrent terms of imprisonment of two and a half years on each of the counts. The sentences were suspended on the appellant entering into a bond in the sum of €1,000 on conditions, including that she would keep the peace and be of good behaviour for a period of two and a half years from the 11th May 2016, that she would place herself under the supervision of the Probation Service for the duration of the bond and attend all appointments with the Probation Service, that she would keep the Probation Service fully informed of her contact details and follow all lawful instructions from the Probation Service, that she would fully engage with the Probation Service in dealing with her addiction issues and attend all therapeutic treatment recommended, and that she would undergo treatment at a residential treatment centre. The appellant, the DPP, appealed to the Court of Appeal seeking a review of the sentence pursuant to s. 2 of the Criminal Justice Act 1993. The appellant submitted that the imposition of a wholly suspended sentence was erroneous. In particular it was contended that: (i) the sentencing judge erred in principle in failing to properly formulate and structure the sentence in accordance with approved sentencing practice as enunciated by the Court of Appeal; (ii) the sentencing judge erred in principle in failing to adequately reflect the seriousness of the offences by imposing a sentence of two and a half years imprisonment and suspended it in its entirety; (iii) the sentencing judge erred in principle in failing to attach sufficient weight to the evidence that the respondent failed to make restitution to the injured party; (iv) the sentencing judge erred in principle in giving undue weight to the mitigating factors in the case and in particular evidence of the respondent’s drug habit; (v) in all the circumstances the sentences imposed by the sentencing judge were unduly lenient.

Held by Mahon J that the level of offending was very serious, given that it involved a sum of well over €200,000, and that it was a pre-meditated, well planned and carefully orchestrated fraud undertaken over a fairly prolonged period. Mahon J noted that there were obvious similarities between this case and the facts in DPP v Walsh (Court of Appeal, 26th February 2016). Mahon J held that, even allowing, to the greatest possible extent, for the appellant’s strong mitigating factors, including her guilty plea and previous good record and her own difficult personal circumstances, the imposition of a wholly suspended prison sentence was not justified; serious pre meditated fraud will almost always merit a custodial sentence. Mahon J noted that the fact that the victim of the fraud was a large corporation rather than an individual may have justified a more lenient sentence than would otherwise be the case, but, normally, only the existence of exceptional circumstances should result in an entirely non-custodial sentence where there are hundreds of thousands of euro involved.

Mahon J held that the Court was satisfied that the sentence imposed by the sentencing judge was not only lenient but unduly lenient. The Court would consider a replacement sentence.

Appeal allowed.

JUDGMENT of the Court (ex tempore) delivered on the 28th day of October 2016 by Mr. Justice Mahon

1 This is an application for a review of a sentence pursuant to s. 2 of the Criminal Justice Act 1993.

2 The respondent pleaded guilty to ten counts, of which three were of making a false instrument contrary to s. 25 of the Criminal Justice (Theft and Fraud Offences) Act 2001, three were of using a false instrument contrary to s. 26 of the Criminal Justice (Theft and Fraud Offences) Act 2001, three were of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and one was of attempted theft contrary to common law.

3 On 11th May 2016, the respondent was sentenced to concurrent terms of imprisonment of two and a half years on each of the counts. The sentences were suspended on the appellant entering into a bond in the sum of €1,000 on conditions, including that she would keep the peace and be of good behaviour for a period of two and a half years from the 11th May 2016, that she would place herself under the supervision of the Probation Service for the duration of the bond and attend all appointments with the Probation Service, and that she would keep the Probation Service fully informed of her contact details and follow all lawful instructions from the Probation Service, and that she would fully engage with the Probation Service in dealing with her addiction issues and attend all therapeutic treatment recommended, and that she would undergo treatment at a residential treatment centre.

4 The offences were committed during the period 2007...