Court of Appeal: Man who swindled vulnerable woman out of her life savings loses appeal against sentence

About this case:

• Judgment:
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Finding that the sentencing judge had not erred in fixing a headline sentence of 4.5 years where the maximum sentence was 5 years, Mr Justice Hedigan said that the ongoing and persistent deception was so despicable that the Court of Appeal would not have interfered if the headline sentence had been set at the maximum.

Driveway resurfacing scam

In October 2015, Mary Dillane was visited upon at her home by Mr Michael O’Brien, who convinced her she needed to fix the driveway or a postman would trip and sue her. Ms Dillane agreed to pay €7,500 for repaving the driveway, and €1,500 for painting the house.

Days later, Ms Dillane received a phone call from someone describing himself as an accountant for TSB Bank who stated that the members of the Travelling Community who were doing work for her were overcharging her. Ultimately Ms Dillane agreed to pay Mr O’Brien a further €77,000 in the promise of “a big cheque at the end”.

Ms Dillane was described as a person of exceptional vulnerability, and Mr O’Brien had targeted her in order to exploit her naivety and gullibility. The Court heard that in the space of 6 weeks, Ms Dillane was swindled out of approximately €90,000.

Conviction

In December 2015, Ms Dillane contacted the Gardaí, who arrested Mr O’Brien when he went to meet Ms Dillane for a further payment.

Mr O’Brien told the interviewing Garda that he knew it was a scam but that he needed the money and he was not the principal actor. Mr O’Brien stated that he was only getting between €150 - €200 per day from “the Boss Man”. Ms Dillane however confirmed that Mr O’Brien was the one who made the initial contact, carried out the works, and met her to receive the payments; and that in her view he was the main man.

In January 2017, at Dublin Circuit Criminal Court, Mr O’Brien pleaded guilty to one count of making a gain or causing loss by deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001. In March 2017, he pleaded guilty in respect of three further counts similar to this, and was sentenced to 3 years on each count to run concurrently.

Court of Appeal

In the Court of Appeal, Mr O’Brien appealed the severity of his sentence on the grounds that the trial judge erred in law in:

One of mitigating factors that Mr O’Brien sought to rely on was that he had apologised and raised restitution of €20,000 through the sale of a family car.

Mr Justice Hedigan said that this was a despicable crime committed against a particularly vulnerable woman who was a carer for her 95-year-old mother, and was swindled out of over three quarters of her life savings. Mr Justice Hedigan said that the on-going and persistent fraud perpetrated on her was carefully planned and executed “without scruple or hesitation”, and that his tactics of currying favour with her were “truly contemptible”.

Considering the severity of the sentence, Mr Justice Hedigan said that the Court accepted the approach outlined by Professor O’Malley in Sentencing Law and Practice:

“Persistence, purpose and impact are among the key factors to be considered in fraud sentencing. Courts are most likely to impose heavy prison sentences when there has been a persistent pattern of fraudulent conduct. They also have regard to the purpose of the fraud, and to the quality and degree of trust reposed in the offender. Where monies have been misappropriated for purely selfish purposes in order to fund lavish lifestyles, offenders can expect little mercy.”

It was clear from the sentencing judge’s remarks that she took full account of the mitigating factors, and applied them to give a reduction on the sentence of 30%. Mr Justice Hedigan said that his was a “more than adequate and indeed generous reduction”.

Mr Justice Hedigan was satisfied that the sentencing judge had not erred in fixing the headline sentence of 4.5 years and that the deception was so despicable that the Court of Appeal “would not have demurred had she fixed the headline at the full five years”.