The Court of Appeal has dismissed Denis O’Brien’s appeal against a two-year prison sentence for stealing €100 from a 74-year-old man’s wallet, upholding the decision to make the sentence consecutive to a term imposed for four other thefts.
The ex tempore judgment was delivered by Ms Justice Isobel Kennedy on 15 September 2020. The appeal concerned a single theft count under section 4 of the Criminal Justice (Theft & Fraud) Offences Act 2001. The two-year term had been imposed on 28 February 2020, consecutive to a five-year sentence imposed on 17 February 2020, with the final two years of that sentence suspended.
The judgment says the offence occurred on 12 April 2019. The injured party, Sean McCarthy, told the court that a man came to his home saying his cattle trailer had broken down and asking to borrow money for repairs. McCarthy felt intimidated and lent him €200. After McCarthy put his wallet in his jacket pocket in his bedroom, the man entered the room and took another €100 without permission. He did not return the money as promised. Gardaí identified O’Brien as the driver of a black Hyundai seen on CCTV from Dunmanway Garda Station. O’Brien made admissions after his arrest and questioning.
O’Brien challenged the sentence as excessive and argued that the judge had erred by imposing a consecutive term, giving insufficient weight to mitigation and rehabilitation, and failing to apply the principles of proportionality and totality. He relied on his guilty plea, admissions, apology, mental health difficulties and cocaine addiction. The Director of Public Prosecutions accepted that consecutive sentences were not mandatory and should be used sparingly, but argued that a concurrent term would have added little or no time for a serious offence against an elderly victim.
The appeal court said the sentencing judge had discretion to impose a consecutive term and had explained the decision by reference to the circumstances and pattern of offending. It cited O’Brien’s 61 previous convictions, including theft and deception offences, and the planning involved in targeting an elderly man in a rural, isolated location. The court also found that the sentence reflected the totality of the offending and that the judge had considered the mitigation, including the guilty plea and apology.
The court said O’Brien ultimately received seven years’ imprisonment, with the final two years suspended, for five theft counts. It was not persuaded the sentence was excessive and dismissed the appeal.