Court of Appeal reduces suspended sentence for fraud by adding eight months of immediate custody.

THE COURT OF APPEAL

Record No. 148CJA/16

Birmingham J.

Sheehan J.

Mahon J.

The Director of Public Prosecutions

Appellant

- and-

Naila Zaffer (No.2)

Respondent

JUDGMENT of the Court (ex tempore) delivered on the 17th day of January 2017 by

Mr. Justice Mahon

1. The respondent pleaded guilty on the 23rd February, 2016, to ten counts, three of which were of making a false instrument

contrary to s. 25 of the Criminal Justice (Theft and Fraud Offences) Act 2001, three were of using a false instrument contrary to s.

26 of the Criminal Justice (Theft and Fraud Offences) Act 2001, three were of theft contrary to s. 4 of the Criminal Justice (Theft and

Fraud Offences) Act 2001, and one was of attempted theft contrary to common law.

2. On the 11th May, 2016, the respondent was sentenced to two concurrent terms of imprisonment of two and a half years on each

of the counts. The sentences were suspended on the appellant entering into a bond in the sum of €1,000 on conditions, including

that she would keep the peace and be of good behaviour for a period of two and a half years from the 11th May, 2016, that she

would place herself under the supervision of the Probation Service for the duration of the bond and attend all appointments with the

service, and that she would keep the service fully informed of her contact details and follow all its lawful instructions, and that she

would fully engage with the service in dealing with her addiction issues and attend all therapeutic treatments recommended, and that

she would undergo treatment at a residential treatment centre.

3. The appellant sought a review of the said sentences pursuant to s. 2 of the Criminal Justice Act 1993, on the grounds that they

were unduly lenient. That application was determined by this Court on the 28th October, 2016, when it deemed the said sentences

unduly lenient. In its ex tempore judgment delivered on that date, this Court stated as follows:-

“In this case, the level of offending is very serious, given that it involved a sum of well over €200,000, and that it was a

pre-meditated, well planned and carefully orchestrated fraud undertaken over a fairly prolonged period. There are

obvious similarities between this case and the facts in Walsh (DPP v. Walsh CA 26th February, 2016). Even allowing, to

the greatest possible extent, for the appellant’s strong mitigating factors, including her guilty plea and previous good

record and her own difficult personal circumstances, the imposition of a wholly suspended prison sentence is not

justified. Serious pre meditated fraud will almost always merit a custodial sentence. The fact that the victim of the

fraud is a large corporation rather than an individual may justify a more lenient sentence than would otherwise be the

case, but, normally, only the existence of exceptional circumstances should result in an entirely non custodial sentence

where there are hundreds of thousands of euro involved. The Court is satisfied that the sentence imposed by the

learned sentencing judge was not only lenient but unduly lenient. The Court will consider a replacement sentence in due

course.”

4. This judgment is concerned solely with the imposition of the replacement sentence.

5. The offences were committed during the period 2007 to 2012, while the respondent was employed as a senior insurance claims

official with the Irish Public Bodies Insurance Company. The offences involved the forging of insurance claims by adding an additional

claimant to each of seventeen insurance policy claims paid by the Irish Public Bodies. The additional claimant in each case was always

one of five persons, all known to the respondent. Cheques then issued in the names of the five persons, and these cheques were

then lodged into a number of bank accounts. The total amount of the fraud was €221,600. No personal financial loss resulted from the

fraud. It was entirely absorbed by Irish Public Bodies.

6. This court has reviewed sentences in a number of cases involving fraud. For example, in DPP v. Walsh [2016] IECA 74, a custodial

sentence of two and a half years imprisonment was varied to the extent that the final ten months were suspended. In that case the

fraud involved an employee of a life insurance company defrauding his employer of approximately €200,000 over fifteen months. In DPP

v. Reilly [2016] IECA 43 a fraud of in excess of €800,000 resulted in a four and a half year sentence, which sentence was upheld by

this court. The fraud was committed against Canada Life by one of its agents.

7. A feature of these types of fraud cases is often the fact that the perpetrator was previously a person of exemplary character,

such as the respondent, in this case. Another is the fact that the ‘victim’ is often a large company reasonably capable of recovering

from the event. Invariably also the offender is in a senior position of trust within the organisation, as is also the case with this

respondent.

8. The court is satisfied that the headline sentences of two years and six months are the appropriate sentences in this case and are,

in general terms, consistent with sentences imposed in broadly similar cases in recent years. The court will therefore impose the same

sentences, but subject to an element of them being suspended having regard to the following considerations:-

(i) the strong mitigating factors including the plea of guilty, co-operation with the gardaí, genuine remorse, the lack of

previous convictions and the respondent’s commitment to avoid any further offending, as is evidenced by her remaining

out of trouble since the commission of the offence almost two years ago.

(ii) the respondent’s difficult background. Her counsel aptly described her as being psychologically vulnerable. In this

regard the report of Dr. O’Leary, counselling psychologist, is particularly revealing.

(iii) the very positive reports from the Probation Service and the Community Addition Response Programme, both of which

strongly indicate an ambition to deal with her addiction difficulties and avoid re-offending.

9. These factors when considered together justify treating the respondent as an offender who, notwithstanding the fact that she has

committed a very serious crime, deserves particular leniency and the court proposes to proceed on that basis, in the first place, by

suspending half of the two years and six month sentences.

10. There is however an additional factor that requires consideration. The respondent has, since February 2016, enjoyed her liberty

and now faces a reversal of that status. This is probably significantly more difficult for her than if she had received an immediate

custodial sentence and on its own account requires a further adjustment of what might be described as the appropriate sentence.

That further adjustment will be an additional suspended element of seven months.

11. The court’s sentences will therefore be as follows: sentences of two years and six months with all but the final eight months of

each suspended for a period of three years post release on condition that the appellant enters into a bond in the sum of €100 to keep

the peace and be of good behaviour. The custodial element of the sentences will therefore be eight months. The sentences will date

from today, and are concurrent.