The Court of Appeal has dismissed a Director of Public Prosecutions challenge to the sentence imposed on an employee who admitted stealing €305,072.64 from his employer over five months in 2016.
The DPP’s application under section 2 of the Criminal Justice Act 1993 argued that the sentence was unduly lenient. The appeal concerned the decision to suspend the prison terms in full; the DPP did not challenge the headline sentence identified by the sentencing judge.
The employee pleaded guilty to ten sample counts of theft on 30 May 2017. On 19 January 2018, the sentencing judge ordered 240 hours of community service on the first count and imposed two years’ imprisonment on the remaining counts, to run concurrently and be suspended for five years subject to conditions.
The judgment said the employee had transferred money from the company’s accounts to his own personal account on 71 dates between 20 April and 22 September 2016. After a bank manager queried irregularities, he admitted the offences and later made full admissions to gardaí. He said he had stolen the money to fund online gambling. The judgment recorded €29,000 in restitution, a further €3,000 available for payment and repayments of €100 a week. It said full repayment was improbable.
The DPP submitted that employee fraud involving a breach of trust, repeated acts and a substantial loss warranted immediate custody and that the sentence did not adequately reflect deterrence. The employee’s counsel pointed to the relatively short offending period, cooperation, early guilty plea, gambling addiction, rehabilitation, restitution and previous good character.
The Court of Appeal said the starting point for serious employee fraud is an immediate custodial sentence, with exceptional circumstances required to justify a fully suspended sentence. But the court also had to decide whether the sentence represented a substantial departure from the appropriate sentence, giving substantial weight to the sentencing judge’s assessment of the evidence and circumstances.
The sentencing judge had considered the employee’s admissions, remorse, treatment at Hope House, probation assessment of low reoffending risk, restorative justice work, employment and community support. The suspended sentence required him to remain of good behaviour and gambling-free, attend treatment and comply with probation directions, avoid bookmaker accounts, and continue restitution payments.
The Court of Appeal concluded that the sentencing judge had carefully balanced the circumstances and identified the reasons for finding immediate custody neither necessary nor desirable. It held there was no basis to intervene and dismissed the DPP’s appeal. The original sentence therefore remained in place.