The Court of Appeal has found that a wholly suspended sentence imposed on a former senior insurance claims official for fraud involving more than €220,000 was unduly lenient. The court said it would consider a replacement sentence in due course; it did not impose one in this judgment.
The decision concerned a sentence imposed on 11 May 2016 after Naila Zaffer pleaded guilty to ten counts: three of making false instruments, three of using false instruments, three of theft and one of attempted theft. The sentences were concurrent terms of two and a half years’ imprisonment, suspended on conditions including a €1,000 bond, probation supervision and residential addiction treatment.
The offences were committed between 2007 and 2012 while Zaffer worked as a senior insurance claims official for the Irish Public Bodies Insurance Company. The judgment says insurance claims were forged by adding one of five people known to her as an additional claimant to 17 policy claims. Cheques were issued in those names and lodged into several bank accounts. The Court of Appeal described the total fraud as €221,600. The sentencing judge had referred to €221,685 across 18 transactions and noted that the money had not been recovered.
The Director of Public Prosecutions argued that the sentencing judge had failed to reflect the seriousness of the offending, give sufficient weight to the lack of restitution, and had placed undue weight on mitigation. The prosecution said the sentence was unduly lenient. Zaffer argued that there was no error of principle, relying on her serious drug addiction, early guilty plea, cooperation, remorse, difficult childhood and lack of previous convictions. Her counsel also said the victim was a corporation rather than an individual.
The appeal court outlined the high threshold for sentence review: the prosecution had to establish undue leniency, amounting to a substantial departure from the appropriate sentence. It said a sentencing judge’s discretion should not be disturbed merely because the appeal court might have chosen a different sentence.
The court nevertheless concluded that the planned fraud, carried out over a prolonged period and involving hundreds of thousands of euros, made the wholly suspended sentence unjustified, even taking the mitigating circumstances into account. It said serious premeditated fraud will almost always merit custody and that an entirely non-custodial sentence would normally require exceptional circumstances in a case involving such sums. The court found the sentence not only lenient but unduly lenient. The judgment records no replacement sentence or final order beyond that finding and the indication that resentencing would be considered later.