Court dismisses appeal on sentence leniency but modifies restitution schedule to ensure compliance.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

Record No: CJA309/15

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

v

AMY McAULEY

Respondent

Judgment of the Court (ex tempore) delivered the 9th day of June, 2016 by Mr. Justice Edwards

Background to the Appeal :

1. In this case the applicant seeks a review pursuant to section 2 of the Criminal Justice Act 1993 (the Act of 1993) of three

concurrent sentences of two years imprisonment, each of which was suspended for ten years upon conditions, which sentences were

imposed upon the respondent by Dublin Circuit Criminal Court on the 30th of November 2015 following her pleas of guilty to three

counts of theft, contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, on the grounds that the said sentences

were unduly lenient.

2. In addition to the standard conditions which are invariably imposed when a sentence or sentences is or are being suspended, the

suspension of the respondent’s sentences was also made conditional on her making full restitution to the injured party within the

period of the suspension.

3. The amount of required restitution was of the order of €102,355.20 representing €132,355.20 (being the sum of the three amounts

stolen i.e €44,220.10, €66,765.10 and €21,307.00) less €10,000 restitution made in advance of the trial and a further €20,000

restitution paid over on the day of the sentence hearing.

The facts

4. The facts of the case are succinctly summarized in the applicant’s written submissions and the Court proposes to adopt that

summary for the purposes of this ex tempore judgment. Garda Jamie Nolan gave evidence that the respondent was an employee of a

company called Nordzucker Ireland Limited based in the Sandyford Industrial Estate in Dublin. Count 1 on the indictment occurred on

the 23rd July, 2013 and involved the theft of €44,220.10. Count 3 occurred on the 30th July, 2013 and involved the theft of

€66,765.10 and count 5 referred to the 26th February, 2014 and involved the theft of €21,307. As previously stated the total amount

stolen was €132,355.20.

5. The respondent had obtained a job with Nordzucker Ireland Limited on a short term contract replacing an employee who was on

maternity leave. She was employed as a credit controller within that company. She was involved in the processing of invoices and

contacted employees from Lakelands Dairies Limited asking them to discharge invoices presented to them by the respondent on behalf

of Nordzucker Ireland limited.

6. Ms. Emily McInerney who was an employee of Lakelands Dairies Limited and who had worked with that company up until the 6th

September, 2014, was tasked with processing invoices due to paid by Lakelands Dairies Limited and with making payments to

company suppliers, one of which was Nordzucker Ireland Limited. Ms. McInerney had indicated that she had received an email from

the respondent on the 23rd July, 2014, stating that due to a problem, Nordzucker Ireland Limited had temporarily changed banks from

Bank of Ireland to Allied Irish Banks for receipt of payments from debtors. The respondent provided Ms. McInerney with new account

details in respect of an account with Allied Irish Banks. Although this was not apparent to Ms McInerney, the details provided did not

in fact relate to any account with Allied Irish Banks held by Nordzucker Ireland Limited but instead related to a personal account in

the name of the respondent with that bank. On receipt of the new bank account details Ms. McInerney updated the bank account

details for Nordzucker Ireland Limited on the Lakelands Dairies Limited computer system and she then processed two payments to

Nordzucker Ireland Limited, the first on the 23rd July, 2013 for an amount in the sum of €44,220.10, and the second on the 30th July,

2013 for an amount in the sum of €66,765.10. These payments were lodged to the new bank account, the details of which had been

provided to her by the respondent.

7. On the 6th August, 2014, the respondent emailed Ms. McInerney to say that the problem with the bank account details had been

sorted out and that Nordzucker Ireland Limited was reverting to the old Bank of Ireland account.

8. A Ms. Sarah Brady subsequently took over from Ms. McInerney at Lakelands Dairies Limited and she recalled an occasion, i.e., the

25th February, 2014, when a further email was received from the respondent. This e-mail asked that Lakeland Dairies Limited would

once again discharge a supplier invoice by making a payment to the Allied Irish Bank account rather than the Bank of Ireland account.

A payment was subsequently paid into the respondent’s account at Allied Irish Banks in the sum of €21,307 on the 26th February,

2014.

9. All of these matters came to light as a result of other companies within the Nordzucker Ireland Group auditing their accounts. By

this time the respondent had left employment with Nordzucker Ireland Limited. The respondent’s father made a statement to the

gardaí informing the gardaí that the respondent had got a new job in and around March 2014, as her contract had expired with

Nordzucker Ireland Limited. The respondent had called to see her father to explain to him what she had done and that she wanted to

go to the garda station to hand herself in. The respondent asked her father to contact the CEO of Nordzucker Ireland Limited and to

inform him as to what she had done. Her father duly met the CEO of Nordzucker Ireland Limited and apprised him of the situation and

the CEO in turn contacted the gardaí who on the 5th April, 2014, arrested the respondent who had come to Dundrum garda station by

appointment. The respondent was detained pursuant to s. 4 of the Criminal Justice Act 1994 and in the course of being interviewed

made full admissions, which included that she had previously worked for another company called Bestseller Ireland Limited from whom

she had stolen €91,113.34. She stated that when she had got the job at Nordzucker Ireland Limited she had taken monies from that

company to repay the monies that she had previously taken from Bestseller Ireland Limited. The figure of €91,113.34 was repaid in full

to Bestseller Ireland Limited, but the monies due to Nordzucker Ireland Limited remain outstanding save for the sum of €30,000 that

had been repaid at the date of sentencing.

The personal circumstances of the respondent

10. The respondent was born on the 8th of September 1989, and so was aged 26 at the date of sentencing. She is a single woman

and she is currently unemployed but at the date of sentencing had both a main daytime job as a bookkeeper and also a part time

evening job teaching music. While the appellant is currently unemployed it is hoped that once her notoriety arising from these

proceedings has subsided somewhat, and a fade factor has operated, that she may be able to resume some form of employment.

11. The respondent had no recorded previous convictions at the date of her sentence.

12. The sentencing court was informed that the respondent had a number of mental health issues in the nature of anxiety,

depression, mood disorder and a grief reaction, which predated the offences, and for which she had been receiving treatment,

including periods of hospital treatment as an in-patient. She has a history of self harm in that context, in that she attempted suicide

by overdose on one occasion.

13. The respondent pleaded guilty at the first opportunity. She was also extremely co-operative and in effect had (through her

father) self reported her crimes to the CEO of her former employer, who had in turn notified the gardaí, as previously stated. She

made fulsome admissions in the course of being interviewed by the gardaí.

The sentencing judge’s remarks

14. In the course of sentencing the respondent on the 30th of November 2015, the sentencing judge said:

“The accused person comes before the Court having pleaded guilty to very serious offences of theft. Serious, insofar as

firstly they require a fair degree of ingenuity to contrive, ie. put in place. They represent a repeat offence to the extent

that she had already stolen from another company, a previous employer. It's a significant amount of money involved

and it is theft from an employer, which represents that invidious concept of the breach of trust that is placed on anyone

in a work situation.

However, the accused has never been in trouble before and in her interviews gives and account about where the money

was spent and how it was spent. There is an indication that it all necessarily wasn't spent on herself and that in her

family circumstances there were very, very straitened conditions. Not been in trouble before if the Court can, it should

give at least one chance to every offender, if it is possible and deserving. Ms McAuley is a very talented young individual,

leaving aside her misjudgments in terms of borrowing or spending other people's money.

I am impressed by the testimonials that have been handed in and the efforts she has made in the interim to address her

wrongdoing, but also to hold herself together in circumstances where she has her own personal difficulties to deal with.

She is in the hands of good counsellors and carers and if she maintains her medication and takes the advice of others

she'll get herself through all of this. I understand from what's been said that there is a willingness on her part to repay in

full the money she wrongly took and on that basis I am prepared not to impose a prison sentence.

As best she can she has sought to put that right. She eventually, for whatever reasons, it is not explained but perhaps

just simply pressure and a sense of guilt she told her father who then advised the company and in time the gardaí had

to be involved. What money she had left she repaid and has brought to court today a significant sum of money, having

regard to her personal circumstances. But there is a bit to go and that route must be travelled. The company must get

its money back. That is the least that can be done.

In respect of each of the offences for which she had pleaded guilty I impose a sentence of two years' imprisonment and

I will suspend that period of imprisonment for a period of 10 years from today's date. The condition being, obviously,

that the accused stays out of trouble and repays in full the monies due to the company. If you will enter a bond now on

your own surety of €100 you will be free to go.

As I say, I am impressed by your efforts. If you continue those then this should not trouble you any more. I know it's

difficult but you have to put right the wrong that you did and that is the best way to do it.

The basis on which the review is sought.

15. It is contended that the sentence imposed represents a substantial departure from the norm, caused by the following alleged

errors of principle.

16. It was submitted that the sentencing judge erred in principle in failing, when imposing sentence, to give adequate weight as an

aggravating factor to the substantial amount of money that was stolen from her employer. The Court was referred to two English

authorities, R. v. Cove (1993) 14 Cr. App. R (s) 498. R. .v Barrick (1985) 81 Cr. App R, 78 in support of the proposition that offences

of dishonesty involving a breach of trust, especially when committed by professional people, are likely to meet with an immediate

prison sentence, unless there is some exceptional factor or the amount of money obtained was small. It was submitted that neither

situation obtained here.

17. It was further submitted that the suspended sentence was inappropriately structured because it failed to provide for any sums to

be paid periodically, rendering it difficult to monitor the respondent’s compliance with the condition of her suspended sentences as

regards the making of restitution.

Discussion and Analysis.

18. The relevant principles that must guide this Court in the conduct of a review such as the present one are well established.

19. The jurisdiction to review a sentence on the grounds that it was unduly lenient derives from s. 2 of the Criminal Justice Act of

1993, as amended, which (to the extent relevant) provides:

2.(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as

the “sentencing court”) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Appeal

to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days, or such

longer period not exceeding 56 days as the Court may, on application to it in that behalf, determine, from the day on

which the sentence was imposed.

(3) On such an application, the Court may either—

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers

appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application.

20. In terms of the general principles governing such reviews, the leading authority is The People (Director of Public Prosecutions) v.

Byrne [1995] 1 I.L.R.M. 279. This was a judgment of the former Court of Criminal Appeal in the first case referred to it under s. 2 of

the Act of 1993, and in it, O’Flaherty J giving judgment for the court, sets out a number of principles and considerations relevant to

the conduct of such reviews. He said:

“In the first place, since the Director of Public Prosecutions brings the appeal the onus of proof clearly rests on him to

show that the sentence called in question was ‘unduly lenient’.

Secondly, the court should always afford great weight to the trial judge's reasons for imposing the sentence that is called

in question. He is the one who receives the evidence at first hand; even where the victims chose not to come to court as

in this case — both women were very adamant that they did not want to come to court — he may detect nuances in the

evidence that may not be as readily discernible to an appellate court. In particular, if the trial judge has kept a balance

between the particular circumstances of the commission of the offence and the relevant personal circumstances of the

person sentenced: what Flood J has termed the ‘constitutional principle of proportionality’. (see People (DPP) v. W.C.

[1994] 1 ILRM 321), his decision should not be disturbed.

Thirdly, it is in the view of the court unlikely to be of help to ask if there had been imposed a more severe sentence,

would it be upheld on appeal by an appellant as being right in principle. And that is because, as submitted by Mr Grogan

SC, the test to be applied under the section is not the converse of the enquiry the court makes where there is an appeal

by an appellant. The inquiry the court makes in this form of appeal is to determine whether the sentence was ‘unduly

lenient’.

Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a

substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this

Court.”

21. Since then, the relevant statutory provision has also been considered by the Supreme Court in The People (Director of Public

Prosecutions) v. McCormack [2000] 4 I.R.356. In that case Barron J. stated:

“In the view of the court, undue leniency connotes a clear divergence by the court of trial from the norm and would, save

perhaps in exceptional circumstances, have been caused by an obvious error of principle.

Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts

but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence

for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of

potential penalties is dependent upon those two factors. It is only when the penalty is below the range as determined on

this basis that the question of undue leniency may be considered.”

22. This Court has considered the full circumstances of this case, and the trial judge’s remarks at sentencing, and it is not satisfied

that it discloses any manifest error of principle resulting in a sentence that was unduly lenient in the sense of being a clear

divergence from the norm.

23. The offences certainly did involve a significant breach of trust, and while the respondent has no recorded previous convictions it

was not, by her own admission, the only occasion on which she had misappropriated funds from an employer. As against that, this

was a first recorded offence. The respondent was relatively young. She had pleaded guilty at the first opportunity. She had also been

extremely co-operative. She was remorseful and ashamed. She had already made substantial partial restitution and was offering to

make full restitution if afforded the time to do so. In addition, the respondent had faced, and continues to face, a number of

significant adversities, particularly mental ill health.

24. The sentence was undoubtedly lenient. However, the transcript makes it clear that the sentencing judge did recognise and take

account of the aggravating factors in the case. While the sentence imposed was lenient, it was not so lenient as to be outside of the

norm, particularly having regard to the fact that this was a first offender who was offering to try to make full restitution. A

sentencing judge must be afforded a significant margin of appreciation in the selection of what is the appropriate penalty in any

particular case and we are satisfied that the sentencing judge in this case acted within the margin of appreciation properly to be

afforded to him.

25. Moreover, while we acknowledge that the structure of the suspended sentence is liable to the legitimate criticisms that the

applicant makes, we do not consider that the present sub-optimal structure renders the sentence unduly lenient in and of itself.

Rather, it is within the inherent jurisdiction of this Court to substitute an alternative structure regardless of whether we regard the

sentence as being unduly lenient or not, and we propose to do so.

26. Overall then, we are satisfied that the sentence imposed was not unduly lenient and the Court dismisses the application.

However, the Court will nevertheless, and of its own motion, interfere to modify that condition of the suspension of the respondent’s

sentences providing for the making of restitution, so as to require that 30% of the required sum should be paid on or before the

expiration of five years of the suspended period; that a further 30% of the required sum should be paid on or before the expiration of

seven and a half years of the suspended period; and that any balance outstanding thereafter be paid on or before the expiration of

the remainder of the ten year suspended period.

27. Should it be necessary for any application to be made to court in connection with alleged non compliance by the respondent with

the conditions of the suspension of the respondent’s sentences, as restructured by this Court, all such applications are to be made to

the Circuit Criminal Court in the first instance. This will ensure that the respondent’s right to further appeal to this Court in connection

with any order(s) made in that context is preserved.