The Court of Appeal has dismissed Michael O’Brien’s appeal against the severity of his sentence for four deception offences, leaving concurrent three-year prison terms in place.
In a judgment delivered on 20 March 2018, Mr Justice Hedigan said the sentencing judge had properly considered O’Brien’s role and the mitigating factors. The appeal concerned sentences imposed by Dublin Circuit Criminal Court on 24 March 2017, after O’Brien pleaded guilty to four sample counts of making a gain or causing loss by deception, contrary to section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
The Court of Appeal said the indictment originally contained 10 counts, each involving €5,000. The victim, Mary Dillane, told Gardaí she had handed over about €90,000. Evidence at sentencing described how O’Brien approached her about work at her home and later collected money from her as part of a promised scheme to recover funds. The judgment records that O’Brien admitted receiving €15,000 on three occasions, knowing it was a scam, and said he was paid €200 each time. He also said he had borrowed €4,000 from another person.
O’Brien argued on appeal that the sentencing judge treated him as the scam’s principal actor, gave insufficient weight to mitigation and set too high a starting point. His counsel also relied on the prosecution’s acceptance that O’Brien was culpable for €20,000 of the total loss. The prosecution argued that he had approached Dillane, carried out work, contacted her and collected money, and that no other person had emerged from the investigation.
The sentencing judge had set a four-and-a-half-year headline sentence before reducing it by 30 per cent for mitigation, including O’Brien’s guilty pleas, lack of previous convictions, family responsibilities, remorse and €20,000 restitution. The Court of Appeal said the judge had recognised the prosecution’s position that O’Brien was not the principal beneficiary, while finding he was the prime and only identifiable mover in the deception.
Describing the offence as carefully planned and persistent, the appeal court said the sentencing judge’s assessment was correct and the reduction for mitigation was “more than adequate”. It said it agreed with the sentences imposed and dismissed the appeal.