Court of Appeal dismisses appeal against theft sentence, finding 50% mitigation discount reasonable.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

Appeal No. 179/2015

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Martin Reilly

Appellant

Judgment of the Court (ex tempore) delivered on the 19th day of February 2016 by Mr. Justice Edwards.

Introduction

1. In this case the appellant, having signed pleas of guilty in the District Court on the 1st of April 2015 to 80 counts of theft contrary

to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and having affirmed those pleas before Dublin Circuit Criminal

Court on the 11th of May 2015, was sentenced on the 29th of June 2015 to a single term of four years and six months imprisonment

on count no 1, with counts 2 to 80 inclusive being taken into consideration, such sentence to date from the date of sentencing.

2. The appellant appeals against the severity of his sentence.

The Facts of the Case

3. The appellant committed the offences while employed as a tied agent with Canada Life. The period of time over which the offences

were committed spans 2002 to 2011. The charges relate to theft from eighteen clients of the appellant and Canada Life. The total

amount of provable losses was €832,142.

4. The sentencing court heard evidence, inter alia, that the appellant had admitted in his statements that in or around 2001 / 2002,

he began misappropriating small amounts of clients funds for his own use and that, as time passed, the amounts got bigger. The

appellant admitted in his statements that he was a compulsive gambler and that this was the motivation for his dishonest behaviour

and that he stole to feed his habit. The appellant stated during the course of his last interview that he wished that he had been

caught earlier as it had all gotten out of hand and he had lost everything to gambling.

5. The sentencing court was told that the appellant had explained the modus operandi of the thefts in his statements to the Gardaí.

The appellant would in the first instance encourage and advise a client to withdraw money from an existing savings or investment

policy. Then, once the client was in receipt of a cheque for that money, he would persuade the client that it would make good

financial sense to re-invest it in a Canada Life/EBS fund on the basis that this would yield a higher return than the original savings or

investment policy. He would then get the client to hand the monies back to him for re-investment. Sometimes the client would simply

endorse the back of the cheque that he or she had received and return it to the appellant. On other occasions he would get the

client to issue a cheque or bank draft payable to him. On yet other occasions, he was given cash. The appellant would then lodge the

monies into his own account. The client, however, was invariably informed that their money had been invested in the Canada Life/EBS

fund but no such investment was in fact made. Evidence was given that false documentation was produced to clients to reassure

them that their monies had been invested as promised and that some of the clients were vulnerable people.

6. The largest theft from a single individual involved a sum of in excess of €400,000.00 being dishonestly appropriated.

7. The appellant’s employment with Canada Life was terminated in or around the 29th November, 2011 when the appellant was found

to be in breach of a cash handling procedure, following a report by a client that cash had been paid to a Mr Reilly in respect of policy

premiums. At the time of the termination of his employment, this was the only irregularity known to the appellant’s employer.

8. Some short time later, the appellant voluntarily contacted his employer, arranged a meeting and explained to his employer that he

had defrauded many clients over a period of time. He gave a detailed account of his wrong-doing and furnished to Canada Life a file

prepared by him in respect of each client that he had defrauded. In addition, and prior to any complaint being made to An Garda

Siochana, the appellant presented himself to Drogheda Garda Station and furnished a voluntary statement in respect of the matters

before the Court. The appellant furnished the Gardai with a list of the eighteen clients that he had defrauded. The appellant also

produced a file in respect of each victim’s case containing details of the victim, the amount of the fraud in that particular victim’s

case and how the fraud was perpetrated.

The impact on the victims

9. Each of the eighteen victims were fully indemnified by Canada Life in respect of their losses, with Canada Life paying the provable

loss and a small additional figure to represent compensation to each victim. However, the victims were out of pocket for a

considerable period of time before being re-imbursed. In some instances this caused hardship and in every case it caused

understandable stress, worry and concern. The total loss to Canada Life was €1,182, 574.

Evidence as to the appellant’s personal circumstances

10. The appellant is 59 years of age and is a separated man with one daughter and two grandchildren. He left school at around

twelve and half years and worked his way through various careers before beginning work with Canada Life in or around the mid 1980’s

and worked his way up to a position as a tied agent. As stated already, he lost his job as a result of his offending behaviour.

11. The sentencing court heard evidence that the appellant is remorseful, and the evidence for his remorse is his extensive co-

operation and his offering to plead guilty at the first available opportunity. Although he went to Drogeda Garda Station to confess on

the 14th of December 2011 he did not, due to circumstances beyond his control, in fact get the opportunity to sign pleas in the

District Court until the 1st of April 2015. He was therefore in a stressful “limbo” for more than three years.

12. The sentencing Court also had the benefit of a report from Dr Kevin Lambe, Consultant Clinical Psychologist, in which Dr Lambe

had reported (inter alia):

“Mr. Reilly presents as a man who is in recovery from a gambling disorder which began almost twenty years ago. Gambling

Disorder is described in DSM-5 as a chronic and persistent disorder that leads to clinically significant impairment or

distress. Mr. Reilly's disorder would have been persistent and severe at the time of the offences. It is a chronic condition

where the person loses themselves in cravings and highs in much the same way as with a drug. The low prevalence of

illegal acts such as fraud theft to finance gambling in those affected by gambling disorder points to the severity of the

illness for Mr. Reilly. Multiple therapies have empirical support in the treatment of gambling disorder and Mr. Reilly has been

fervent in his help seeking behaviour and ongoing aftercare activities.

There is no evidence for the presence of a co-morbid psychological disorder and importantly no evidence for the presence

of a substance related disorder. This lack of co-morbidity has implications for his recovery process which should continue

to progress well provided he continues with his aftercare program for at least the next two years. Mr. Reilly has indicated

a willingness to engage with aftercare for many years to come. I note the research wherein gambling disorder unlike the

other addictive disorders does not follow the usual course of relapsing and or emit an episodic nature.

Like any recovering addict, Mr. Reilly is continuing to come to terms with the implications of his disordered behaviour on

his and other's lives. He is in a period of mourning for his lost life and deeply remorseful for how his behaviour has affected

his family, his career, his employer, and victims. The evidence points to no long term gain for this man - like a drug, the

money is all used up. He lives on the generosity of new friends; the prospect of providing emotionally for his daughter and

grandchildren; and importantly - hope - that things will work out okay. Moreover, it appears he is making an important

contribution to workings of Gamblers Anonymous and all reports and references received point to a genuine and sincere

character. When all is considered, it is my opinion the risk of recidivism must be deemed low.”

13. The appellant has no previous convictions.

The sentencing judge’s remarks

14. In the course of sentencing the appellant, the sentencing judge stated:

It seems during the 2000s, from early 2000 to late 2000s and probably to '11, Mr Reilly had a severe gambling habit. As

is I think more than always happens, he needed money and it seems what he did for the money was to steal the

moneys from his clients and he stole a considerable amount of money from his clients. The amount actually stolen

stands in the region of about 800,000-odd, I think €830,000. He was a tied agent for Canada Life and he dealt with these

customers on behalf of Canada Life. Now, it seems that he had various ways of doing it but the principal one was to

encourage people to cash in their policies for other more lucrative he promised more lucrative investments to these

parties. Instead of investing as he had promised, he simply stole the money. Now, obviously, in doing what he did do, Mr

Reilly broke his trust to both his customers and to Canada Life. He owed both of them trust and he breached that

grievously.

Now, obviously, gambling is a very pernicious activity and it has brought down many a good man and woman, but

nonetheless, Mr Reilly is morally culpable for what he did. It's hard to believe that a decent man such as Mr Reilly would

behave in such a fashion, because I'm satisfied that he was a decent man when he began to steal from his clients. Now,

Mr Reilly has very good mitigation. It seems he has been a hardworking man all his life. He didn't start of with the best

with great advantages in life, but he made the best of his situation. I'm also cognisant from the report that he had to

endure a lot let's say he had to overcome a lot of obstacles. I've read the report particularly in relation to the doctor

involved and it's deeply reprehensible what happened to Mr Reilly.

Now, Mr Reilly comes to court, he has signed early pleas and that's to his credit. He fully cooperated with the guards;

that's to his credit. He made useful admissions to the guards; that's to his credit. Also it seems finally he has taken

steps to deal with his gambling addiction. It seems from the papers he has succeeded. Not alone that, he has become

an advocate in relation to gambling addition and he has given talks to people affected. I'm also satisfied from what's

been said on his behalf and the general circumstances of the case that Mr Reilly is unlikely to come back before these

Courts. I'm prepared to accept at this stage in any event he has conquered his addiction and it seems to me from

what's been said to me and the report of Mr Lambe that he's unlikely to start gambling again. Mr Reilly seems to be a

very likeable man. He seems to have done his best to deal with the situation. He has I think travelled to Cork and

obtained employment and that's to his credit. And he has very, very good mitigation as outlined by his counsel Mr

Kilfeather.

But I am left in deciding what to do about Mr Reilly, I must obviously take into account the mitigating factors, but also I

must take into account the nature of the crimes that Mr Reilly has pleaded guilty to. It was a pattern of misbehaviour

over a prolonged period of time and of serious misbehaviour, stealing the guts of €830,000 from your clients and

obviously they haven't lost in financial terms but obviously they have lost in I suppose they're not as trusting as they

once were, these people. Canada Life have been exposed to losses of I think 1.1 million it seems and therefore this is a

very serious case of theft. Unfortunately for Mr Reilly, I think I have to impose upon him a custodial sentence. The only

question is how long should that custodial sentence be? I am sympathetic to the plight he found himself in to a degree

but unfortunately what he did I'm afraid cannot be forgiven. I think the sentence I'm going to impose on Mr Reilly, I'm

going to impose it on the first count, that's the first count that he's the plea he's entered in the district court. I'm going

to impose upon him a custodial sentence of four and a half years from today's date.

The grounds of appeal

15. The appeal is advanced primarily on the basis that the sentencing judge gave insufficient weight to the mitigating factors in the

case. Defence counsel had advanced five factors in respect of which he had urged that significant credit should be given in

mitigation. These were (i) the appellant’s extensive cooperation, which it was submitted went far beyond the standard type of co-

operation that usually attracts mitigation; (ii) his early pleas of guilty, (iii) his personal circumstances, with particular emphasis on his

age, his previous good character, and the lengthy “limbo” that he had had to endure; (iv) his remorse and (v) he openness to, and

steps towards, rehabilitation.

16. The case has been made that it is an inevitable inference from the final sentence imposed of four years and six months that

insufficient weight was attached to the mitigating circumstances.

Discussion and analysis

17. This has been a difficult case for this Court to analyse because contrary to established best practice the sentencing judge has

indicated neither his starting point based on his assessment of the seriousness of the offending behaviour, nor the amount of discount

that he was giving for mitigating factors in the case. This presents a real and manifest problem in circumstances where the appellant

is contending that insufficient weight was given to the mitigating factors in the case.

18. While this Court has previously stated that the failure to follow best practice in sentencing procedure will not automatically

amount to an error of principle per se, such as is likely to lead to the quashing of a sentence, nevertheless, if it is impossible to

discern the sentencing judge’s reasoning in a case in which it is not obvious, and where it is essential to understand that reasoning, it

may be impossible for an appellate court to uphold the sentence at issue.

19. However, in this particular case it is not disputed by counsel for the appellant that the offending conduct represented a very

serious case of s. 4 theft. There are relatively few cases of theft that might justify a headline sentence of the maximum sentence or

a figure close to the maximum sentence before discounting for mitigation, but this Court feels that it cannot be gainsaid that this

would have been one of those cases.

20. In the circumstances this Court is prepared to infer that the sentencing judge must have had in mind a headline sentence of nine

or possibly ten years imprisonment. In discounting from such a headline sentence to a sentence of four years and six months

imprisonment, he would have allowed at least a 50% discount for mitigation. While there were certainly significant mitigating factors in

the case, a discount of the order which we infer must have been given was sufficient in our judgment to reflect those mitigating

factors. The final sentence does not appear to us to represent a deviation from what might reasonably have been expected in a case

such as this. The sentence imposed was within the sentencing judge’s reasonable margin of appreciation and we find no error of

principle.

21. The appeal is therefore dismissed.