IECCA 38 · Court of Criminal Appeal

An Chúirt Achomhairc Choiriúil

The Court of Criminal Appeal

Bill number 0321DU of 2011

Appeal number 342 of 2012

Charleton J

Moriarty J

Kelly J

In the matter of section 63 of the Courts of Justice Act 1924

Between/

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

Prosecutor/Respondent

and

Carol Hawkins

Accused/Appellant

Judgment of the Court delivered by Mr Justice Charleton on the 7th day of November 2014

1. On 29th October, 2014, judgment was given by this Court dismissing the appeal in this case against conviction. That same day,

argument was heard on the appeal against sentence that had been left over to await that decision.

Background

2. The appellant was sentenced the 6th July, 2012 to seven years imprisonment in respect of these offences by the trial judge, His

Honour Judge McCartan. At issue is whether there is any error in principle that would enable this Court to interfere with that

sentence.

3. The background to the offences has been stated in the judgment of the Court affirming the conviction. A concise reference to the

salient facts is necessary. From 1992 the appellant worked for Adam Clayton as a housekeeper over a period of about eight years.

Because of the satisfactory nature of her temperament and because of her diligence, she became indispensable to him. Her duties

changed from about the year 2000 to include taking on the role of his personal assistant. She was paid approximately €4000 per

month. She was given signing rights on cheque books in respect of two of his bank accounts and this was, as the jury clearly found,

specifically for the purpose of discharging his outgoings. These included flights, household expenses for his home in south Dublin and

other sundry items that would arise from time to time. Nothing in her duties enabled her to pay any form of bonus to herself, either in

cash terms by way of a purchase using Adam Clayton’s bank accounts. Over a period of two calendar years, however, the appellant

abused the trust that had been placed in her and stole, according to the verdict of the jury, 181 cheques the property of her

employer to a value of €2.8 million approximately. These cheques were transferred into her own accounts. At the trial, impressive

forensic accounting evidence was given as to the expenditure that resulted from these dishonest transactions. At paragraph 4 of this

Court’s judgement on conviction, a sample of the spending by the appellant was set out. This is now quoted:

Nonetheless, the prosecution proved that other expenditures had been made. Much of it was most unusual. One of the

exhibits produced was an insurance schedule from a firm called Sean Barrett, Bloodstock Insurances Limited. As of 11th

November, 2005 this listed a schedule of 22 horses that were insured under a bloodstock schedule called Plato Racing.

The horses included Javana, valued at €10,000; Academie Royale, valued at €10,000; One Great Lady, valued at €30,000,

Let’s Dance, valued at €10,000; Ionizer, valued at €10,000; Royal Opera, valued at €10,000; Manipulator, valued at

€39,000; Madam Mosaic, valued at €5,000; Cheonmado, valued at €20,000; Valour Lady, valued at €10,000. Other

unnamed fillies were in training, including one valued at €51,000. A forensic examination of the bank accounts of the

appellant over the relevant period showed horse racing expenditure at €434,000, credit card payments of €172,000,

transfers to a family member of €48,000, the purchase of a car for €21,000, fees to the New York Film Academy of

€22,000, transfers to another family member of €19,000 and rent on a New York apartment of €17,000. In addition, an

account held by the appellant jointly with another family member showed the purchase of an apartment in New York for

€350,000, credit card payments of €104,000, cash withdrawals of €97,000, various other horse racing expenditure of

€95,000, travel expenses of €36,000 as well as other sums paid. An analysis of the average annual credit card

expenditure during the relevant period established a figure of €304,000. This included department store spending of

€330,000 and spending in restaurants and hotels of €225,000 with €153,000 expended on airline tickets. In addition there

were cash withdrawals by way of the appellant’s personal credit card of €64,000. The sums have been rounded down to

the nearest thousand.

4. The maximum sentence for an offence of theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 is 10

years imprisonment. The learned trial judge approached the issue of sentencing in this way:

I have, in the first instance… to consider whereupon the scale does this crime fit in the nature of the offences

contemplated by the statute. It seems to me that it must rank at the higher end of the scale and is, in fact, in its scale

and nature, representing a serious breach of trust between employee and employer, and the way in which it was craftily

done over time, it must rank as a case deserving of the maximum sentence provided by the section, of 10 years.

The aggravating factors in the case are those set out and have been mentioned already: the scale of the theft – this

was a vast amount of money to be taken by one individual of another, irrespective of their position and represented… a

significant breach of trust between two people. Mr Clayton seems to this court from what has emerged in this case to

have been a good employer, a person who is capable of showing care and compassion, who gave the accused a second

chance, despite the fact that she had admitted to wrongdoing… These were crimes rooted in greed and nothing else.

Whether she was a fool or a very clever person really matters little.

[…]

In mitigation, it is clear that the accused is a person of good character up to this. She has never been in trouble with the

law before. That is a significant factor. Clearly there has been huge adverse publicity; life will not be the same for her in

the future, but all of that is of her own doing and has been added to by her attitude and stubbornness, frankly, at this

trial. In fairness to her, nonetheless, she did not give evidence and she did not take the oath and seek to brazen or

explain away the inexplicable. And for all of that, yes, I accept the proposition and submission being made that there is

likely not to be a repeat, although, on the other hand, the frankly deluded attitude of the accused to her persistence of

innocence based upon entitlement and permission and consent makes one wonder, if ever she was let into the position

again, might she not do so, because, as I say, it lacks good reason. There is a small element of hope, if nothing else, that

perhaps Ms Hawkins will, at some stage, come to realise her wrongdoing by the fact that she is now prepared to forfeit

the monies that were taken by way of net proceeds from the sale of the apartment [in New York], a significant loss on

the original monies taken or used… [and] does indicate a certain change of attitude.

[…]

In respect of Ms Hawkins, having regard to the factors that aggravate this case… and giving credit for the mitigating

factors I have spoken of, I propose a sentence of seven years imprisonment, which I will impose uncounted number 38,

being the most significant of the charges on the indictment, and I will mark the other matters to be taken into

consideration. The sentence is to date from today.

Error of principle

5. It is not the task of an appellate to review a sentence with a view to substituting its own view of penalty for the decision of the

sentencing judge. Were an appeal court to pursue that course, it would not be undertaking an appellate function but would, instead,

be effectively supplanting and rendering nugatory the task of sentencing at first instance. That would not be in accordance with the

constitutional scheme under Article 34 of the Constitution whereby the courts are to comprise of courts of first instance and courts

of appeal. According to McCarthy J in the Supreme Court in The People (DPP) v Kelly (No. 2) [1983] IR 1 at 24 this Court should not

substitute its own view merely because “the appellate court would, or should, have taken a different view of the facts from that of

the jury of the court of trial.”

6. Decisions on the nature of that appeal are to the same effect: that the Court of Criminal Appeal is not engaged in a retrial but

reviewing the correctness in law of the decisions of the court of trial. This correctly describes an appeal process. In The People

(Director of Public Prosecutions) v. Cunningham [2002] 2 IR 712 Hardiman J stated at 737-8:

It is trite, but fundamental, to recall that the jurisdiction of the Court of Criminal Appeal is an "appellate" jurisdiction.

Moreover, as was said in The State (Woods) v. Attorney General [1969] I.R. 385 and elsewhere, the jurisdiction is a

statutory one: the court is entirely a creature of statute and has no other jurisdiction. The manner of exercising this

jurisdiction is, by virtue of s. 33 of the Act of 1924, primarily on the note or record of the hearing in the court below and

not by way of oral rehearing as is the case in appeals from the District Court to the Circuit Court or from the Circuit Court

to the High Court in civil matters. Accordingly, the members of the Court of Criminal Appeal cannot place themselves in

the position of the trial judge who hears and sees the witnesses but, in the nature of their jurisdiction, can only assess

whether the decision against which the appeal is taken was correct in principle.

Denham J at page 724 was to the same effect:

The Court of Criminal Appeal is an appellate court. It is the ultimate court of appeal for most serious criminal trials. It is

not an appellate court which re-tries the defendant. It does not hold a rehearing. It is an appeal based on the transcript

of the trial court together with such matters as are permitted under the legislation. As the appeal it is not a full rehearing,

the rights of the accused are already constricted and so the statutes should not be interpreted so as to further limit the

right of the accused to an appeal. There are penal consequences for an accused and the statutes should be construed

accordingly.

7. Whether against conviction or against sentence, an appeal to this Court cannot constitute a fresh trial of the issues. Instead, on

appeal against sentence, this Court is limited to interfering with a sentence only where it is demonstrated in argument by the

convicted person, or the Director of Public Prosecutions if the appeal is against any claimed leniency in sentencing, that there has

been an error of principle. A reasonable approach to defining what an error of principle in sentence is may be found in the judgment of

the Supreme Court of Canada in Dagenais v Canadian Broadcasting Authority [1994] 3 SCR 835, an appeal on a different issue, where

at 914 L’Heureux-Dubé J (dissenting on what was the issue in that case) stated:

While it is true that the appellate courts should not in general interfere with a trial judge’s exercise of discretion, an

appellate court can interfere where that discretion has not been exercised judicially and judiciously. Specifically, an

appellate court can overturn a discretionary decision of a trial judge where it is made, inter alia, on wrong principles, a

misapprehension of significant facts or in a non-judicial manner.

8. In R v O’Donnell [1997] 1 SCR 948, the Supreme Court of Canada, Sopinka J, noted (at para. 15) that two judgments, R. v.

Shropshire [1995] 4 SCR 227, and (R. v. M. C.A) [1996] 1 SCR 500, set out the applicable standard of review of sentencing decisions

in that jurisdiction. Speaking for the majority, Sopinka J quoted (at para. 16) the following passage from R v M (CA) with approval:

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate

factors, a court of appeal should only intervene to vary a sentence imposed a trial if the sentence is demonstrably unfit.

9. An analysis of the origin of what is described as the “canonical status” of this rule, and a critical analysis of it is to be found in

O’Malley, Sentencing Law and Practice (2nd Ed., Dublin, 2006) at paragraphs 34-09, 34-10 and 34-11. The rule allowing the Court of

Criminal Appeal to overturn a sentence only where an error of principle has been demonstrated by the appellant is not simply a

question of deference, as that learned author describes it. It is, rather, part of the constitutional order whereby the primary

responsibility in sentencing rests with the court of trial before which a plea of guilty was entered or where conviction has taken place.

In the first appeal to the Court of Criminal Appeal under s.2 of the Criminal Justice Act 1993, in The People (DPP) v Christopher Byrne

[1995] 1 ILRM 279, the primacy of the view of the trial judge in the sentencing process was affirmed by O’Flaherty J at 283 thus:

… 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.

The rule does not rest not solely on the practical consideration that the trial judge will have the primary opportunity to form an

opinion as to the seriousness of the offence and the attitude of the offender, together with the context of the offender’s

circumstances. While this is important, the task of an appeal court is that of legal review. Only an error of principle constitutes a

mistake in law which is capable of correction on appeal. It is also, as Professor O’Malley states, the function of an appeal court,

where possible, to offer some guidance to trial courts as to the gravity of the offence and the mitigating factors involved, with a view

to establishing broad parameters that can become the foundation of sentencing by a trial court into the future. This is part of the

function of appellate courts with a view to establishing legal certainty. While in The People (Director of Public Prosecutions) v.

O'Donoghue [2007] 2 IR 336 this Court was concerned with the issue of undue leniency in the appeal by the Director of Public

Prosecutions under section 2 of the Criminal Justice Act 1993, it is clear that both that kind of appeal and appeals by a sentenced

person cannot involve the Court of Criminal Appeal re-engaging in the sentencing exercise with a view to substituting its own view. In

The People (DPP) v. O'Halloran (Unreported, ex tempore, Court of Criminal Appeal, October 21st, 2002) this Court again reiterated (in

the course of an appeal against severity of sentence for manslaughter) that absent the identification of an error of principle, the

discretion of the trial judge as to sentencing should not be interfered with. At paragraph 4 of that judgement Denham J stated:

It was submitted that while there was no particular error in what the learned trial judge said - that the error was in the

sentence. It was submitted that the sentence was too severe. In essence it was argued that as there was a plea, the

effective sentence was 12 years. (The eight years being arrived at because of the plea.) There is no doubt this sentence

is at the upper end of the sentencing discretion of the trial judge. However, it was within the discretion of the learned

trial judge. The jurisprudence of this court has been restated recently in Redmond. The Court of Criminal Appeal will not

reduce a sentence simply because its members would have imposed a lighter one had they been dealing with it at first

instance.

10. In People (D.P.P.) v. Redmond (Unreported, Court of Criminal Appeal, 21st December, 2000), faced with an undue leniency appeal

against sentence by the D.P.P., the Court of Criminal Appeal, through Hardiman J, stated:

[T]he function of this Court on an application such as the present is quite different from the function of the judge of the

sentencing Court at first instance. Specifically, this Court has no power to impose a greater sentence than the trial

judge's purely because the members of the Court of Criminal Appeal, if they had been dealing with the matter at first

instance, would have thought a more severe sentence appropriate. This precisely reflects the principle on which the Court

of Criminal Appeal deals with a Defendant's appeal against severity of sentence. In each case, the Court is precluded from

simply substituting its own judgment for that of the trial judge. In a Defendant's appeal, the Court cannot reduce the

sentence simply because its members would have imposed a lighter one, had they been dealing with the matter at first

instance. An error of principle is required.

This appeal

11. On this appeal, it has been argued that the appellant has made the most of her time in prison and successfully completed, and

with distinction, difficult educational courses with a view to fitting out her life into the future. It is argued that the trial judge failed to

take this into account on sentencing. It is also been submitted that because of the notoriety of the case, her options into the future

cannot extend to positions of responsibility and that she will have to take difficult measures with a view to re-establishing her life,

perhaps under a different name. It is to be appreciated that the trial judge in sentencing was entitled to assume in respect of any

potential prisoner that he or she would constitute, as has the appellant in this case, a model prisoner. Educational, spiritual and

sporting resources are available in prisons and can constitute a particular benefit to those who, like the appellant, are in a position to

take them up and to use them for their benefit. Failing to see into this future, which is what in effect the submission amounts to,

cannot be regarded as an error of principle by the trial judge. In The People (DPP) v Walsh (1989) 3 Frewen 248, the claim was made

before this Court that it should review sentence on the basis of the progress of a prisoner over the duration of his sentence. This

approach was ruled incorrect. The following occurs in the judgement of Finlay CJ at 250-251:

There are matters set out in a statement from the applicant and repeated and pointed out by Mr Sorahan here in his

submission on behalf of the applicant which would call for or raise the question of leniency and mercy towards this man in

all the circumstances that have happened. There is a very clear division between the function of this Court which is to

review sentences imposed on the basis on which they were imposed and to see if an error has occurred and the function

of the Executive which is to deal with questions of leniency and mercy. In particular, this is highlighted by the fact that

one of the matters which Mr Sorahan has stated, which I am sure is correct, is that this man has been an ideal or model

prisoner and has not given any trouble in prison and is very anxious to reform. We have had a letter indicating that kind of

approach from a human point of view. All these cases are sad and the Court must view that, but would point out that

that would be a matter properly to be included if a petition were brought to the Minister and it might well be that the

Minister would see fit to alleviate the sentence that has been imposed but it is not a part of the function of this Court nor

should it do it, in the view of the Court.

Purpose of sentencing

12. It is beyond doubt that the ongoing efforts at reform by the appellant are entirely to her credit. In the adjudication of what the

appropriate sentence was to be, however, it is clear from the remarks of the trial judge that he took into account in a proper way

how a court should approach that difficult question. In The People (Attorney General) v O’Driscoll (1972) 1 Frewen 351 at page 359, a

classic statement of the law was laid down in this Court by Walsh J at page 359 thus:

The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to

induce him in so far as possible to turn from a criminal to an honest life and indeed the public interest would best be

served if the criminal could be induced to take the latter course. It is therefore the duty of the Courts to pass what are

the appropriate sentences in each case having regard to the particular circumstances of that case – not only in regard to

the particular crime but in regard to the particular criminal. The sentences in the present case may have a very deterring

effect on other people but are not such as to induce these young men to turn from a criminal to an honest life.

13. There, an error of principle had been identified. It is clear, however, that no such error is apparent in the approach of the trial

judge in the case under appeal.

Broad parameters

14. Offences cannot be regarded in isolation from the broad variables which will bring an offence into general categories that will

range from the most lenient through to the most serious sentence that might be imposed. The trial judge was clearly correct in

identifying the broad parameters into which this case fitted as being in the most serious category. By reason of the mitigating factors

that were urged, and with a view to ensuring that some hope was properly left alive in the mind of the appellant while serving the

sentence, the trial judge did not impose the maximum sentence available. While he did not articulate the kind of offences that might

appropriately be categorised as the most serious and would possibly attract the maximum sentence, it is clear that he identified

correctly as a matter of principle why this case could be differentiated from the most serious band. While this was a series of

offences which lasted over a number of years and involved a multiplicity of offences and the theft of extremely large amounts of

money together with a betrayal of trust by the appellant of a decent and caring employer, it was not one of those cases whereby the

victim of the offences was bereft of finance and in circumstances of hardship. Those cases do occur. The final sentencing band

involving the imposition of a sentence of imprisonment of close to the maximum sentence, or the maximum sentence, might justifiably

be imposed on similarly serious offenders where the victim or victims are left in real financial distress.

15. This was not a case where the appellant could be regarded as having any insight into her crimes as of the date of sentencing;

but the trial judge scoured the evidence with a view to finding some mitigating factor. This he found to be present in the cooperation

which she belatedly offered in relation to securing the New York property for the victim. This was an appropriate sentencing exercise.

The appellant was, correctly, not to be sentenced for insisting on her rights to a trial but the learned trial judge again found some

grain of evidence in favour of the appellant by noticing that she had not perjured herself and had not given such instructions to her

counsel as would have required him to engage in any form of direct challenge to credibility, which could perhaps have been upsetting.

16. In consequence, the approach of the trial judge was correct in principle and showed appropriate regard both to rehabilitation and

to mercy.

Result

17. In the result, since no error of principle has been identified the Court cannot interfere with the sentence.