The People (At the Suit of the DPP) v Emma Fehily

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 26 July 2021
• Neutral Citation: [2021] IECA 232
• Docket Number: Record No: 148/2020
• Court: Court of Appeal (Ireland)

In the Matter of Section 2 of the Criminal Justice Act, 1993

Between/

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

Applicant

and

Emma Fehily

Respondent

[2021] IECA 232

Edwards J.

McCarthy J.

Kennedy J.

Record No: 148/2020

THE COURT OF APPEAL

Sentencing – Forgery – Undue leniency – Applicant seeking review of sentences – Whether sentences were unduly lenient

Facts: The applicant, the Director of Public Prosecutions, applied to the Court of Appeal seeking an undue leniency review in respect of concurrent sentences of 12 months’ imprisonment, suspended in their entirety, which were imposed on the respondent, Ms Fehily, at Cork Circuit Criminal Court on the 18th of June, 2020, in respect of two counts of forgery contrary to s. 25 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and two counts of attempting to pervert the course of justice contrary to common law. The application for a review was advanced on three grounds: (1) the sentencing judge failed to reflect his appreciation of the gravity of the offences as committed by the offender in an appropriate sentence; (2) the sentencing judge failed to impose a sentence which correctly reflected the level of seriousness attributed by the judge to the crime as committed by the offender; (3) the sentencing judge departed in a significant way from the norm that would reasonably be expected in a case of this nature.

Held by the Court that quite apart from the attempts to mislead the Court it was clear from an early stage of the review that the sentences imposed at first instance for the four offences were unduly lenient. The Court held that the appellant’s record was very bad, she was significantly culpable in her attempts to mislead the Circuit Court, and there was an insufficient basis, on any view of the case, for the imposition of wholly suspended sentences. The Court held that a court must be seen to protect its own process and where there has been a flagrant misleading of the court and a blatant attempt to pervert the course of justice, it requires the imposition of a significant custodial sentence unless circumstances exist which would tend to substantially mitigate the offender’s culpability. The Court held that there were no such circumstances in this case. The Court considered that the sentences imposed by the court below were seriously outside the norm. In the circumstances the Court quashed the sentences imposed by the court below and proceeded to re-sentence the respondent.

The Court held that a headline sentence of five years was appropriate for each of the offences before it in circumstances where the respondent had a very bad previous record for crimes of dishonesty including convictions for deception. The Court held that the appellant was entitled to credit for her mitigating circumstances. The Court discounted by 18 months from the headline sentence. The Court suspended the final 18 months of the sentence of three years and six months it imposed, as an incentive to the respondent to reform her life following her release from prison and to promote desistance by her from this type of offending in the future. The Court did so on the basis that notwithstanding her absence of true remorse there had been some positive aspects to her life following her completion of the program with Churchfield Community Trust. The Court held that the conditions on which the sentence was being part suspended were that the respondent should enter into her own bond in the sum of €100 to keep the peace and be of good behaviour for the period of imprisonment that she was required to serve and further for a period of two years from her release from prison; further, she was to be subject to supervision by the Probation Service for two years following her release, during which time she was to engage fully with them and abide by their directions and follow their recommendations.

Appeal allowed.

JUDGMENT of the Court ( ex tempore) delivered on 26th day of July, 2021 by Mr Justice Edwards.

Introduction

1 This is an undue leniency review on the application of the Director of Public Prosecutions in respect of concurrent sentences of 12 months' imprisonment, suspended in their entirety, which were imposed on the respondent at Cork Circuit Criminal Court on the 18th of June, 2020, in respect of two counts of forgery contrary to s.25 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and two counts of attempting to pervert the course of justice contrary to common law.

The Circumstances of the Case

2 The respondent appeared before Cork Circuit Criminal Court on the 15th June 2020 and affirmed pleas of guilty to two counts of forgery contrary to s.25 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and two counts of attempting to pervert the course of justice contrary to common law, which she had previously signed in the District Court. The matter came on for sentence on the 18th of June, 2020.

3 The circumstances in which the offences were committed were that the respondent had previously appeared before Cork Circuit Criminal Court on the 16th of November, 2018, for sentence in respect of 40 counts of theft and one count of attempted theft. During the course of that sentencing hearing two documents were produced to the sentencing court by way of testimonials. The first document purported to confirm that the respondent had been in full-time employment with a company called Rockwell Automation from December of 2016 onwards, and bore a signature purporting to be that of Trish Kelly, Human Resources Manager at Rockwell Automation. The second document purported to be a very positive character reference concerning the respondent from Rockwell Automation and, again, bore a signature purporting to be that of Trish Kelly, Human Resources Manager.

4 The respondent received a 30-month sentence for these 41 theft/attempted theft offences on the 16th of November, 2018. However, the court was told at the later sentencing on the 18th of June, 2020, that while she had commenced the 30-month sentence on the date of her sentencing she served only 5 months of that before being released by the executive.

5 Subsequent to the respondent's said sentencing on the 16th of November, 2018, members of An Garda Siochána had cause to visit Rockwell Automation in circumstances in which the said company had reported that it been the victim of numerous thefts. The respondent was suspected of these thefts, and she was subsequently charged and was later convicted of them. However, in the course of their visit to Rockwell Automation on this occasion, the investigating gardai, who were aware that documents purportedly issued by a representative of Rockwell Automation had been produced by the respondent, and had been tendered to the Court on the 16th of November, 2018, as evidence of mitigating circumstances, sought to verify that those documents were in fact genuine. Arising from those enquiries the Gardaí were informed by the aforementioned Trish Kelly, Human Resources Manager at Rockwell Automation, that she had not created the documents which had been produced to the sentencing court nor had she given her permission for their creation. She further stated that she had not signed the said documents nor given permission for any person to sign in her stead.

6 The documents produced to the sentencing court were retrieved from the respondent's solicitor's office and the respondent was arrested and detained for the investigation of offences of suspected forgery and of attempting to pervert the course of justice. The respondent initially denied any involvement in forging documents and attempting to pervert the course of justice when interviewed by gardai, but eventually resiled from those denials and confirmed that the documents were not genuine and that she had composed them herself and used computer-lifted signatures. She was later charged with the four offences, the sentences for which are the subject matter of the present review.

7 Before dealing with those sentences it is important to record that in the intervening period, and arising out of the previously mentioned garda investigation into alleged thefts from Rockwell Automation, the respondent was charged on indictment with 67 counts of theft from that company, and 2 counts of deception also dating from her time working there, and she subsequently pleaded guilty to these offences. She was before Cork Circuit Criminal Court for sentencing in respect of those matters on the 6th of February, 2020, and received a sentence of 3 years' imprisonment with the final 18 months suspended. However, the court was told at the later sentencing on the 18th of June 2020 in respect of the forgery and attempted perversion of the course of justice offences, that she served only one month of the sentence imposed on her on the 6th of February, 2020, before being again released early by the executive.

8 Counsel for the applicant accepted a suggestion from our bench that, although it involves speculation, it was likely, given the chronology, that her release so early into the sentence may have been connected with the onset of the first wave of the COVID-19 public health crisis, when there was much concern about the risk of the virus becoming established in residential settings, including prisons, in consequence of which some prisoners who were deemed suitable were released perhaps earlier than they might otherwise have been. The formal mechanism by means of which a release in such circumstances can be facilitated is under what is known as the Community Return Program which is a scheme whereby offenders complete community service as an alternative to remaining in custody.

9 At the sentencing hearing on the 18th of June, 2020, the court received evidence that the respondent was 36 years of age, was unemployed and was living with her sister and her family. She had at...