The Director of Public Prosecutions v Cassidy

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards
• Judgment Date: 07 April 2025
• Neutral Citation: [2025] IECA 98
• Docket Number: Record No: 136/2023

Between/

The People (at the Suit of the Director of Public Prosecutions)

Respondent

and

Harry Cassidy

Appellant

[2025] IECA 98

Edwards J.

Burns J.

MacGrath J.

Record No: 136/2023

THE COURT OF APPEAL

Sentencing – Conspiracy to defraud – Severity of sentence – Appellant appealing against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Cassidy, on 17 January 2023, entered a guilty plea in respect of one count of conspiracy to defraud contrary to Common Law. Following a period of adjournment, the sentencing hearing took place on 21 April 2023. The sentencing hearing dealt with the appellant and three of his four co-accused (who had also pleaded guilty to various offences) at the same time. Accordingly, the evidence received at the sentencing hearing was in respect of the activities of all four persons that were before the court for sentencing. The sentencing judge delivered her ruling on 12 May 2023, on which date she sentenced the appellant to a term of 6 years and 10 months imprisonment. No part of that custodial disposal was suspended. By Notice of Appeal dated 13 May 2023, the appellant lodged an appeal to the Court of Appeal against the severity of the said sentence. He filed grounds of appeal on 29 June 2023.

Held by the Court that the sheer scale on which the offending occurred in the matter, involving an agreement which required the performance of a huge number of individual transactions, over a prolonged period, involving nearly 200 individual victims, and losses in the tens of millions of Euro, was sufficient to place it in the category of an exceptional case. The Court held that for the sentencing judge to have taken any other view would have meant that her ability to render a just sentence proportionate in the dual sense required by the Constitution, i.e. proportionate both to the gravity of the offending conduct and to the circumstances of the appellant, would be inappropriately corralled and fettered. In the circumstances the Court found no error on the part of the sentencing judge under that heading and rejected Ground of Appeal No 1. The Court found no error on the part of the sentencing judge in regard to her assessment of gravity or in regard to the headline sentence nominated by her, and rejected Grounds of Appeal No’s 2, 3, 4, 5, 6 and 8 respectively. The Court found no error on the part of the sentencing judge in differentiating as between the appellant and his co-accused, and no basis for suggesting that she failed to have regard to sentences imposed in “similar cases”. The Court held that the culpability of the accused and that of his co-accused was not the same. Moreover, the Court found that there were no other “similar cases” from Ireland’s jurisdiction, i.e., cases involving fraudulent activity on this scale, in which there were written judgments to which regard could be had. The Court therefore rejected so much of Ground of Appeal No 7 as suggested the contrary. The Court found no error on the part of the sentencing judge in regard to proportionality and again rejected so much of Ground of Appeal No 7 as contended the contrary.

The Court held that the sentence imposed at first instance was not unduly severe, and the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 7th day of April 2025.

Introduction

1 This is an appeal brought by Mr. Harry Cassidy (i.e., “the appellant”) against the severity of the sentence imposed on him by the Dublin Circuit Criminal Court in respect of one count of conspiracy to defraud contrary to Common Law. On the 17th of January 2023 the appellant entered a guilty plea in respect of the said count. Following a period of adjournment, the sentencing hearing took place on the 21st of April 2023. This sentencing hearing dealt with the appellant and three of his four co-accused (who had also pleaded guilty to various offences) at the same time. Accordingly, the evidence received at the sentencing hearing was in respect of the activities of all four persons that were before the court for sentencing. The sentencing judge delivered her ruling on the 12th of May 2023, on which date she sentenced the appellant to a term of 6 years and 10 months imprisonment. No part of that custodial disposal was suspended.

2 By Notice of Appeal dated the 13th of May 2023, the appellant lodged an appeal against the severity of the said sentence. He filed grounds of appeal on the 29th of June 2023. These grounds of appeal make the following complaints:

“1. The learned sentencing Judge was invited by the Prosecution to fall into error, and did so err, in law and in principle, in determining that the headline sentence should exceed the maximum sentence for the relevant substantive offence underlying the conspiracy.

2. The learned sentencing Judge was invited by the Prosecution to fall into error, and did so err, in law and in principle, in imposing a headline sentence of 14 years in all the circumstances.

3. The learned sentencing Judge erred in law in failing to adequately set out the basis upon which she viewed the headline sentence of fourteen years imprisonment as appropriate in the circumstances of the case before her. The learned sentencing Judge erred in her assessment as to the range in which the offence arose. The learned sentencing Judge refused to allow the statutory maximum sentence for the relevant substantive underlying offence as set down by the legislature to dictate or influence her assessment as to the range in which this offence arose.

4. The learned sentencing Judge erred in law and in principle in relying upon facts and evidence adduced in the preliminary trial hearing requested by the Prosecution. The learned sentencing Judge further erred in law and in principle in relying upon facts and evidence adduced at the hearing of a co-accused in which the Defendant did not participate.

5. The learned sentencing Judge erred in law, in principle and in fact in failing to correctly account for the monetary losses actually accruing and further in failing to account for the on-going recovery of monies as part of the liquidation of Custom House Capital.

6. The learned sentencing Judge erred in law and in principle in failing to afford adequate weight to the evidence that the Appellant was motivated by an intention to preserve and protect monies invested in Custom House Capital.

7. The learned sentencing Judge erred in law and in principle in imposing a sentence which is disproportionate having regard to similar sentences imposed including those imposed on the Appellant's co-accused. The sentence imposed is excessive, disproportionate, overly punitive and oppressive in all the circumstances.

8. The learned sentencing Judge failed to balance adequately the mitigating factors against the aggravating factors. In particular the learned sentencing Judge attached too much weight to the Victim Impact Statements in imposing a headline sentence of 14 years”.

Factual Background

3 At the sentencing hearing of the 21st of April 2023, a Detective Inspector Alan McGovern (otherwise, “D/Insp. McGovern”) gave evidence in relation to the appellant's offending, and that of those co-accused who also faced sentencing, in the context of a wider conspiracy to defraud clients of an investment firm called Customs House Capital.

Procedural History

4 The appellant was charged, along with four co-accused, with conspiracy to defraud, contrary to common law, clients of Customs House Capital Limited by intentionally misleading them as to where and or how their assets had been invested between the 1st of October 2008 and the 15th of July 2011, a period of two years and nine months. By the time the appellant and his co-accused were charged, the appellant had relocated to Germany, where he was working as an English teacher. A European Arrest Warrant (“EAW”) issued for the appellant on the 20th of March 2020. He was arrested in Germany on the 15th of May 2020 on foot of that EAW and an order for his surrender was made by a German court on the 25th of May 2020. As this was during pandemic restrictions his surrender did not take place immediately and he was permitted to remain at liberty pro temp. The appellant then returned voluntarily to this jurisdiction some time before the 26th of August 2020. He appeared in the District Court on that date, and he was then returned for trial to the Circuit Court on the 25th of September 2020. A date was set for the trial of this appellant, and his co-accused, for the 13th of January 2023.

5 The prosecution lodged a preliminary trial application on the 8th of July 2022 subsequent to the commencement of the Criminal Procedure Act 2021, which occurred on the 28th of February 2022 pursuant to S.I. No. 79 of 2022 — Criminal Procedure Act 2021 (Commencement) Order 2022, seeking a ruling on the admissibility of certain proposed evidence. The preliminary trial hearing was listed for the 7th of November 2022 and ran until the 16th of November 2022, with the court below delivering its ruling on the 19th of December 2022. Prior to the commencement of the preliminary trial hearing, two of the appellant's co-accused entered pleas in respect of certain of the counts on the indictment which pertained to them, which pleas were acceptable to the prosecution. Another co-accused pleaded guilty to a charge at a later stage.

6 The case against the appellant was listed for trial on the 13th of January 2023, although it did not commence on that day, but rather a few days later. On the 17th of January 2023, and prior to the swearing of a jury, the appellant pleaded guilty to the count of conspiracy to defraud, the sentence for which is the subject matter of this appeal.

Customs House Capital Limited

7 Customs House Capital Limited (or “CHC” for short) was a private company, limited by shares, that entered liquidation in 2011. It is a...