The Court of Appeal has dismissed the Director of Public Prosecutions’ application to review as unduly lenient suspended sentences imposed on James McMulkin for four thefts involving power tools and equipment.
The judgment, delivered on 10 November 2016, concerned offences to which McMulkin had pleaded guilty before Carlow Circuit Criminal Court. He received concurrent two-year prison sentences, suspended for two years, on three bills of indictment. A fourth theft count was taken into consideration. The suspended sentences were subject to conditions including good behaviour, keeping the peace and following directions from the probation and welfare services.
The offences followed a repeated method. McMulkin told retailers he was buying equipment for an absent third party, then passed on credit card details supplied during a telephone call. The transactions were initially authorised but later reversed after the cardholders reported that they had not made the purchases. Retailers were left with the losses. The judgment lists losses of €380, €699, €1,250 and €900.
The DPP argued that the sentencing judge had understated the seriousness of planned, repeated offending and given too much weight to mitigation, including McMulkin’s family circumstances. He had also been sentenced in Northern Ireland after pleading guilty to 52 fraud charges, and had served a nine-month custodial sentence there.
Medical material before the sentencing judge included a psychiatrist’s provisional opinion that McMulkin might have Frontal Lobe Syndrome following a serious head injury. The psychiatrist said the possibility needed further investigation. The Court of Appeal noted the evidence was unsatisfactory and that the sentencing judge had declined an adjournment to obtain further information, instead giving McMulkin “the benefit of the doubt” on the medical issue.
The appeal court said the planning and repeated nature of the thefts, as well as the retailers’ financial losses, aggravated the offences. It considered that they would not ordinarily be at the lower end of the seriousness scale. However, it found no error in the sentencing judge’s assessment that a two-year headline sentence was within her legitimate margin of appreciation in the circumstances.
The court described suspending that sentence as “very lenient”, but held it was not so extraordinarily lenient that it amounted to a clear divergence from the norm or an error of principle. It therefore dismissed the DPP’s application. The court did not increase or otherwise alter the sentences.