Court of Appeal allows partial suspension of suspended sentence for fraud, reducing term to three years.

THE COURT OF APPEAL

Birmingham P.

Hedigan J.

McCarthy J.

195CJA/2017

BETWEEN

THE PEOPLE

(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT/

PROSECUTOR

- AND -

JOHN STOKES

APPELLANT/

DEFENDANT

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

Mr. Justice McCarthy

1. This is an appeal by the Director of Public Prosecutions or perhaps more properly known as a review in relation to a suspended

sentence of four and a half years imposed on the respondent/accused in this matter. 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 pertain to a period from the 2nd July 2008 to the 11th December 2013. The accused 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

offences undoubtedly had a degree of sophistication and required a degree of organisation and planning.

2. The accused, 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, it seems, of withholding on the payment owed

to the accused by the Department of Social Welfare. He is also paying now, and has for a significant period been paying, €28 per

week from the social welfare receipts.

3. The Director’s application here is based upon the proposition that the trial judge gave undue weight to the mitigating factors which

were present including the fact that the accused 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.

4. Unfortunately the trial judge seems to have made an error of fact in that he refers to the fact that the accused was drug-clean or

free. There was no evidence of a real kind in support of the proposition that he had had a drug problem or, as he asserted to the

probation officer, had lived a chaotic life. Rightly the probation officer commented to the effect that the nature of the fraud and its

sophistication was at variance certainly with the latter proposition.

5. As to the question of remorse, it appears from the probation report that at least so far as the Department of Social Welfare is

concerned by which we mean the public purse, he does not appear to have shown any degree of insight. Mr. Spencer sought to

compare the accused with his wife and sister upon whom sentences of three years were respectively imposed, wholly suspended. He

accepted that his client could be distinguished from them in as much as he accepted that he had put pressure at least upon his wife,

asserted that he was the instigator and, further, was responsible for seeking rent allowance but he submitted that these distinctions

were insufficient to warrant a divergency to the extent of depriving him of a period of suspension. He stressed the extensive

discretion or margin which should be afforded to trial judges when dealing with sentencing. The Director of Public Prosecutions

reminded the court that Mr. Stokes effectively had profited himself as the principal in the fraud and explicitly stated that he had

persuaded his wife. Indeed it appears from the probation report that he regards her as “a victim”.

6. The decision of the Director of Public Prosecutions in DPP v. Byrne [1995] is well known and needs no restatement. As we know, it

elaborates on the principles which apply on an appeal of this kind.

7. The Court refers also to two decisions of one of its members, Hedigan J., of DPP v. Lawlor and DPP v. Hehir, both delivered on the

17th July. In the case of Lawlor Hedigan J. quoted with approval certain observations of Mahon J. in DPP v. Zaphir. In these cases it

was pointed out that:

“serious premeditated fraud will almost always merit a custodial sentence,”

but the margin of discretion available, of course, to the trial judge was also stressed.

8. We take the view that whilst there are significant mitigating factors there were no exceptional circumstances that would justify

complete suspension of the sentences here notwithstanding the minimal or modest nature of the discrepancy so to speak between

the involvement of the accused and his wife and sister. We think in the circumstances that the Director of Public Prosecutions has

made out the case that the sentence was unduly lenient insofar as it was suspended in its entirety. We take 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.

9. We have regard, however, to the subsequent payment of €2,000 and that the accused is now put in a position of having to go into

custody, the fact that there are continuing deductions from his social welfare payments and the payment of an additional €2,000 and

we accordingly think in the circumstances that we will vary the order by providing for a suspension of only three years (on the same

terms). Thus he will serve 18 months in custody.