The Director of Public Prosecutions v Lynn

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards
• Judgment Date: 13 May 2025
• Neutral Citation: [2025] IECA 131
• Docket Number: Record No: 47/2024

Between/

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

Respondent

and

Michael Lynn

Appellant

[2025] IECA 131

Edwards J.

McCarthy J.

Kennedy J.

Record No: 47/2024

THE COURT OF APPEAL

Sentencing – Theft – Severity of sentence – Applicant appealing against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Lynn, appealed to the Court of Appeal against the severity of the sentence imposed on him by the Circuit Criminal Court, Dublin following his conviction by a jury on ten counts of theft contrary to s. 4 of the Criminal Justice (Theft & Fraud) Act 2001 (specifically counts nos. 2-10 inclusive and count no. 19 on the indictment). There were a further 21 counts on the same indictment in respect of which the jury failed to agree. A nolle prosequi was subsequently entered by the respondent, the Director of Public Prosecutions, on those counts, in accordance with s. 12 of the Criminal Justice (Administration) Act 1924. On 19 February 2024, the Circuit Criminal Court imposed sentences of imprisonment for 5 ½ years on each count of which the appellant had been convicted, to run concurrently inter se.

Held by the Court that in circumstances where, immediately post-imposition of sentence and before the court had risen, counsel for the appellant clarified for the benefit of the sentencing judge that his client hoped to avail of standard remission earned (implicitly pursuant to, or in the case of time served abroad on a basis analogous to, the statutory scheme) in respect of all time spent on remand (including the 105 days spent in prison in Ireland’s jurisdiction), the sentencing judge would not have been entitled to infer a waiver on his part of the opportunity to make a case to the executive to be afforded credit by way of standard remission for time served on remand in Ireland’s jurisdiction. Accordingly, the Court held that it was an error on the part of the sentencing judge not to then change that part of his order giving credit for time served on remand in Ireland’s jurisdiction by a combination of straight deduction and backdating measures; he ought simply to have imposed a sentence which itself contained no adjustment to take account of the 105 days, but which directed that in the calculation by the executive of the time to be served by the appellant, he should receive all due credit for such time as was served by him on remand in Ireland’s jurisdiction against the sentence that the sentencing judge was then imposing. Accordingly, the Court held that the sentence was inappropriately structured in so far as the taking into account of time spent on remand in Ireland’s jurisdiction was concerned. The Court allowed the appeal, quashed the sentence imposed by the court below and proceeded to resentence the appellant.

The Court nominated a headline sentence of 16 years as being applicable and discounted by three years to reflect mitigating circumstances other than time served on remand in Brazil and the conditions in which it may have been served. The Court reduced the discount afforded by the court below for time spent on remand (including the allowance made for harsh conditions in regard to so much of it as was served on remand abroad) by three months; the total discount therefore to be applied to the headline sentence of 16 years was 10¼ years leaving a net post mitigation sentence of 5¾ years. The Court imposed the same sentence of 5 ¾ years on each of the 10 counts in respect of which the appellant was convicted, and each sentence was to run concurrently.

Appeal allowed.

APPROVED JUDGMENT

NO REDACTION NEEDED

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 13th of May, 2025.

Introduction

1 . This is an appeal brought by Mr. Michael Lynn (i.e., “the appellant”) against the severity of the sentence imposed on him by the Circuit Criminal Court, Dublin following his conviction by a jury on ten counts of theft contrary to s. 4 of the Criminal Justice (Theft & Fraud) Act 2001 (specifically counts nos. 2–10 inclusive and count no. 19 on the indictment). There were a further 21 counts on the same indictment in respect of which the jury failed to agree. A nolle prosequi was subsequently entered by the respondent on those counts, in accordance with s. 12 of the Criminal Justice (Administration) Act 1924.

2 . On the 19 ^th of February 2024, the Circuit Criminal Court imposed sentences of imprisonment for 5 ¹/₂ years on each count of which the appellant had been convicted, to run concurrently inter se.

3 . The appellant has lodged a Notice of Appeal challenging both his conviction and the severity of his sentences. At case management, the appellant sought leave to be allowed proceed with his appeal against the severity of his sentences prior to the hearing of his appeal against his conviction, and this was granted.

Factual Background

4 . At the sentencing hearing of the 19 ^th of February 2024, the trial Court heard evidence from a Detective Sergeant Shane Curtis in respect of the theft offences of which the appellant was convicted. The total sum stolen was €18,144,385 over a period of approximately six months, and involved six separate victims.

5 . The appellant was a solicitor by profession and was the principal of a Dublin based firm of solicitors known initially as Michael Lynn & Co, Solicitors, and later as Capel Law, Solicitors. The appellant was also a property developer, sometimes trading through a limited liability company, Kendar Holdings Ltd. The solicitors' firm of Michael Lynn & Co / Capel Law acted for the appellant in regard to his property dealings. The firm in question had a solicitor's client account at the branch of Allied Irish Banks (“AIB”) in Crumlin, Dublin 12.

Count no. 2

6 . The particulars of the offence charged as Count No 2 were that “Michael Lynn, on or about the 16 ^th of March 2007, in the County of the City of Dublin, did steal property, to wit, the amount of €1,338,160 (one million three hundred and thirty eight thousand, one hundred and sixty Euro) the property of Danske Bank A/S, trading as National Irish Bank”.

7 . In late December 2006 and early January 2007, the appellant applied for finance from Danske Bank A/S, trading as National Irish Bank (“NIB”), to purchase four separate properties, namely 6 Bolton Court in Bolton Street, Dublin 1; 4 Bolton Court, Bolton Street, Dublin 1; 126 Westland Square, Pearse Street, Dublin 2; and 298 Custom House Harbour, IFSC, Dublin 1.

8 . The sentencing court heard evidence that his application for finance to purchase those four properties was processed in the “ normal way”, i.e. the appellant was required to furnish the bank with a number of documents, to show his net worth and financial state of affairs, so as to comply with the conditions of the loan facility then being sought. Further, it was a requirement that, in the case of each property, the borrower's (i.e., the appellant's) solicitor should provide solicitor's undertakings to register the financial institution's interest in those properties.

9 . On the 16 ^th of March 2007, NIB transferred the sum of €1,338,160, to the aforementioned client account of Michael Lynn & Co, Solicitors.

10 . The evidence was that the appellant applied for finance from NIB to purchase these four properties, knowing that he had already obtained finance to purchase three of them from one or more of three other financial institutions, i.e., Ulster Bank Limited, Irish Nationwide Building Society and Bank of Ireland, respectively; and where one or more of the properties in question had already been pledged as security in respect of the provision of this earlier finance. In one case, on the 20 ^th of October 2006, the appellant had obtained €3,650,000 million from Ulster Bank in respect of the proposed purchase of eleven properties, one of which was 6 Bolton Court. In another case, on the 22 ^nd of November 2006, the appellant had obtained €439,600 from Irish Nationwide Building Society to purchase 298 Custom House Harbour. In yet another case, on the 13 ^th of December 2006, the appellant had obtained €2,742,000 from Bank of Ireland to purchase eight properties, amongst which were again 6 Bolton Court, and also 126 Westland Square.

11 . The appellant did not register himself as the owner of any of those properties and also never registered NIB's interest in those properties. Solicitor's undertakings to register NIB's interest in these properties, purportedly under the signature of Fiona McAleenan, a solicitor in Michael Lynn & Co, Solicitors, were provided to NIB. At the appellant's trial the signatures on these undertakings were acknowledged by the said Fiona McAleenan, as being hers. She also identified the handwriting of another person on the undertakings as being that of a Ms. Liz Doyle, Personal Assistant to the appellant; however, Ms. McAleenan denied having personal knowledge of the undertakings. D/Sergeant Curtis stated that Fiona McAleenan had further denied during her evidence that she had agreed to act as a solicitor for the appellant.

12 . Ms. McAleenan had maintained that she was unaware of the detail of any of the undertakings she had signed, and that she regarded it as being the responsibility of the staff member who was dealing with the particular file [in Michael Lynn & Co, Solicitors], which in many cases was the aforementioned Ms. Liz Doyle, to then comply with the undertakings that she had signed.

13 . Further, a statement of affairs in regard to the appellant and his company Kendar Holdings, purportedly prepared by the appellant's accountants, Kinsella Mitchell and Associates, which was submitted in support of the NIB application was not in fact prepared by that firm, even though it purported on its face to have been prepared by them. The said purported statement of affairs did not reference the earlier financing obtained from other financial institutions in...