Court of Appeal dismisses appeal against three-year concurrent sentences for fraud against a vulnerable elderly woman.

THE COURT OF APPEAL

Mahon J.

Edwards J.

Hedigan J.

Appeal Ref: 89/17

Between

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

Respondent

V

Michael O’Brien

Appellant

JUDGMENT of the Court delivered on the 20th day of March 2018 by

Mr. Justice Hedigan

Introduction

1. The applicant appeared in Dublin Circuit Criminal Court on 19th January 2017 where he was arraigned and pleaded guilty to count 1

on the indictment for the following offence;

(i) making a gain or causing loss by deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act

2001.

The appellant was remanded on bail to the 13th March 2017 for sentence. On 13th March, the applicant was further arraigned on

counts 3, 5 and 7 and he entered guilty pleas in respect of those counts which are similar to count 1 above. The appellant was

sentenced on 24th march 2017 for three years on each count to run concurrently. In this appeal the appellant appeals this sentence

on the ground of its severity.

The Background

2. Evidence was given to the sentencing court on 13th March 2017 by Garda Dermot English who was the prosecuting Garda in the

investigation. There were originally ten counts on the indictment, all of them offences contrary to s. 6 of the above Act. Each one

involved the sum of €5,000. The appellant pleaded guilty to four sample counts. Garda English stated that the injured party in the

case, Mary Dillane attended the Garda station on 24th October 2016 in a distressed state. She informed the Garda that she had

handed over most of her life savings in respect of work done at her home. Ms Dillane had been living with her 95 year old mother and

she was herself a full-time patient, both in-patient and out-patient of Fownes Ward in St. James Hospital which is a psychiatric ward.

She had been suffering from a psychiatric illness for a number of years.

3. Ms Dillane stated that around the beginning of October 2015 some persons called to her house handing out leaflets in connection

with work they could do. She spoke with one of them who told her that she needed to get her driveway fixed or a postman would trip

over and she would get sued. This person was the appellant. She agreed to having the driveway repaved and a price of €7,500 was

agreed to do that. The appellant also stated that he could paint the house for her and a figure of €1,500 was agreed. Ms Dillane said

that she was told that her house was going to fall down and that she needed to sort it out. Some days later she got a phone call

from a person describing himself as Dan Sullivan. He stated he was an accountant for TSB Bank in Crumlin. He stated he had heard

that members of the Travelling Community were doing work for her and that they were overcharging her. This person told her that he

could get the money back but he would need her to give him certain payments. He promised a big cheque at the end for €77,000. She

was told to withdraw €5,000 at a time and she would meet the appellant at these times to give him money. He would call to her

house or she would meet him at the Children’s Hospital in Crumlin or he would call up to St. James Hospital where she was a patient.

She had two bank accounts, one in the Bank of Ireland. In this account on 1st September 2015 there was a balance of €85,500. By

the 17th November 2015 there was only €93 left in the account. Ms Dillane also had an Ulster Bank account. She withdrew €3,600

from this account and handed that over to the appellant. In all Ms Dillane handed over approximately €90,000. She said she knew she

was being ripped off at the time but was still hoping to get her money back. She said that the appellant would ring her at St. James

Hospital and request her to get another €5,000 and meet in the car park of the hospital. The appellant would meet her and sometimes

bring her scones for herself.

4. On 14th December 2015 Ms Dillane got another call to hand over another €5,000 the following day in the car park at St. James

Hospital. This time she contacted the Gardaí. On 15th December 2015 Garda English and his colleague Garda Ian Ward set up an

operation within the hospital grounds where they had a clear view of Ms Dillane. They spotted a male engaged in conversation with

Ms Dillane who matched the description given by her to them. This male was approached and identified as the appellant. Ms Dillane

confirmed that the appellant was the person who told her she needed to get work done on her house. She also confirmed that she

handed money over to the appellant on further occasions.

5. The appellant was arrested and detained. He was interviewed on two occasions and accepted that he did do work on her house.

He stated that he was getting paid a day’s work by another person and that he got €150 for doing that. He admitted that he met Ms

Dillane on three occasions when he received €5,000 on each occasion totalling €15,000. On each occasion he stated that he was only

getting paid €200. He admitted that he knew this was a scam but he needed the money. He accepted that the price for the driveway

should have been €1,500 to €2,000 and not the €7,500 that was actually paid. He stated that he owed money to “the Boss Man”. He

said that he had borrowed €4,000 from him. In his outline to the Court, Garda English said that Ms Dillane confirmed that the appellant

was the person who called to her home and engaged with her and agreed to carry out the works. She also confirmed that the

appellant was “the Boss Man”. He was the one who made the initial contact, he carried out the works and in her view he was the

main man.

Grounds of appeal

6. The grounds of appeal are:

(i) The learned trial judge erred in law in treating the appellant as the principal actor in the case;

(ii) the learned trial judge erred in law in failing to give adequate weight to the mitigating factors and to the accused’s

personal circumstances, in particular the lack of previous convictions;

(iii) the learned trial judge erred in law in placing the offence at the very upper range for deception offences;

(iv) the learned trial judge erred in law by failing to have regard to the wider amount of the deception where the DPP had

agreed that the appellant was culpable to the amount of €2,000.

Personal circumstances

7. Mr O’Brien at the time of sentencing was a 24-year-old man who had one son aged three and had a supportive wife who was

pregnant at the time of the sentence. She has since been delivered of a daughter. He had raised the sum of €20,000 as restitution

through the sale of a family car. At the date of the sentence he had an offer of work available to him from a family member in the UK.

The mitigation that he claimed was as follows;

(a) no previous convictions;

(b) his admissions to Gardaí in interview and cooperation with them;

(c) a guilty plea that saved the injured party from having to come to court to give evidence;

(d) restitution of €20,000 to the injured party;

(e) his remorse and apology;

(f) the industrious life that he has led;

(g) his supportive family to whom he acts as the responsible father;

(h) he has no addiction issues with alcohol or drugs.

The appellant’s submissions

8. Keith Spencer, B.L., on behalf of the appellant argues that notwithstanding agreement that the appellant was responsible to the

extent of €20,000 of the €90,000 swindled from the victim, he was treated as if he was the main principal involved in the scam. He

argues this was an error in principle by the learned sentencing judge. He further argues that the headline sentence was fixed at too

high a level, being four and a half years where the maximum sentence was five years. He argues that not enough allowance was made

for the mitigating factors. These were as outlined above.

The respondent’s submissions

9. Derek Cooney, B.L., for the DPP submits that in relation to the point made that the appellant was not the principal involved, the

fact is no other person emerged from the investigation nor did the appellant proffer any assistance in identifying another person. He

was the one who approached Ms Dillane, he was the one who did the patio and painted half the house. He was the one who phoned

her on different occasions and he was the only one who collected the money from her. It was in fact through his hands passed all of

her life savings. The learned sentencing judge did not sentence him as a principal but as an offender who planned and executed a

scam whereby he deceived a particularly vulnerable woman and swindled her out of all the money she had. As to mitigation, the

learned sentencing judge clearly stated that she did take all mitigating factors into account. A number of letters were handed into

court on his behalf.

Decision of the Court

10. This was a thoroughly despicable crime committed against a particularly vulnerable woman. She was a carer for her 95-year-old

woman and has been swindled out of over three quarters of her life savings. In her situation she, more than anyone else, needed

every penny of those savings. The fraud perpetrated on her by the appellant was carefully planned and executed without scruple or

hesitation. The appellant’s tactics of currying favour with the poor victim were truly contemptible. He created a sense of trust in

himself in his unfortunate victim. He was however all the time breaching that trust. This was a persistent on-going cheating of her out

of her savings. Its effect on her and her mother are incalculable but certainly of the highest order.

11. In his treatise Sentencing Law and Practice (2nd Ed.), Dublin, 2006, at para. 14.10, Professor O’Malley states as follows:

“Persistence, purpose and impact are among the key factors to be considered in fraud sentencing. Courts are most

likely to impose heavy prison sentences when there has been a persistent pattern of fraudulent conduct. They also have

regard to the purpose of the fraud, and to the quality and degree of trust reposed in the offender. Where monies have

been misappropriated for purely selfish purposes in order to fund lavish lifestyles, offenders can expect little mercy.”

We gratefully accept the approach outlined here by the learned author.

12. The learned sentencing judge made quite clear that she was accepting that there may have been another person involved. At p.

1, line 34 of the transcript of the 24th March 2017 she stated as follows;

“The Court recognises that the prosecution has accepted the pleas entered by the accused on the basis of an

acceptance by the prosecution that the accused was not the principal beneficiary of the scam. The benefit to the

accused is somewhat peripheral to the Court’s considerations, as the accused was undoubtedly the prime and only

identifiable mover in perpetrating the deception which caused Ms Dillane’s loss. The accused has brought €20,000 to

court which is said to represent his gain from the venture. He comes before the Court at the age of 24 years with no

previous criminal convictions. He is the father of one child and is expecting another child in July and is said to be a good

husband and father. He has also expressed remorse for his actions.

The offences to which the accused has pleaded guilty under s. 6 of the Criminal Justice (Theft and Fraud Offences) Act

carries a maximum sentence of five years imprisonment. There are several aggravating factors which in my view place

this offence close to the top of the upper range for this type of offence. In the first instance, the accused’s actions in

respect of Ms Dillane were premeditated. The accused targeted a person of exceptional vulnerability and exploited her

naivety and gullibility. The deception was perpetrated over a protracted period of time, and the accused has denied the

injured party the benefit of her life savings, which are irretrievably lost, with the exception of the sum of €20,000 which

has now become available.

Notwithstanding the accused’s absence of previous convictions, on the basis of the aggravating factors which had been

identified, I am of the view that a custodial sentence is necessitated and I am taking the period of four and a half years

as my starting point. I am giving the accused credit for his plea of guilty, acknowledged to be a valuable plea entered at

an early stage, his absence of previous convictions. I am giving him minimal credit for his admissions; I am also taking

into account his family responsibilities and the fact that he has a supportive family who speak well of him. I am also

taking into account the €20,000 which he has brought to court to represent his stake of the proceeds. I also take into

account his remorse and the letters and testimonials which have been submitted on his behalf. And in all of the

circumstances, I am imposing sentences of three years imprisonment in respect of each of the counts to which he has

pleaded guilty, all sentences to date from today’s date and to run concurrently.”

13. It is clear from this passage that the learned sentencing judge did take account of the appellant’s role. She also took full account

of the mitigating factors. She correctly identified the maximum sentence and then explained why she fixed a headline sentence of four

and a half years. She then applied the mitigating factors and gave a reduction on that sentence of 30%. It is the Court’s view that

the sentence identified as the headline was the correct one. There was no error identifiable. It was a deception so despicable we

would not have demurred had she fixed the headline at the full five years. Her consideration of the appellant’s role took account of

the extent agreed with the prosecution but explained why that did not relieve him of his central role in all that was done to cheat this

poor woman of her savings. She clearly took full account of all that was offered in mitigation and allowed 30% of a reduction on the

sentence for that. This was a more than adequate and indeed generous reduction. We can identify no error. We are in fact in full

agreement with the sentence imposed. The appeal is dismissed.