Court of Appeal: Woman who stole over €460,000 has sentence reduced on appeal

About this case:

• Judgment:
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Suspending the final 6 months of the 18-month sentence, Justice Birmingham said that the powerful mitigating factors had to be taken into account, and that without consideration of such, a headline sentence would have been a sentence of five-years imprisonment.

Background

Justice Birmingham explained that the unusual circumstance in which Ms Lisa Lynch found herself in charge of her husband’s transport company, AGL Logistics, since 2010, was that her husband had been diagnosed with mouth cancer two days after she gave birth by Caesarean section and withdrew from the running of the company.

The Court heard that she was “ill-equipped for this task” and was “out of her depth”.

Ms Lynch invested €100,000 of her own money, “with a view to keeping the company in business and borrowed a further sum of €100,000 from her father… before resorting to the criminal activity”

AGL Logistics continued to struggle and, “with a view to keeping it afloat, Ms Lynch issued 93 false invoices” which were paid by financial services company, Bibby Financial Services (BFS), resulting in BFS being at a loss of €460,662.

In the Dublin Circuit Criminal Court in December 2017, Ms Lynch pleaded guilty and was given a sentence of 18 months’ imprisonment, the commencement of which was deferred until after the new year.

Counsel for Ms Lynch had pressed for a non-custodial disposal, but the sentencing judge felt that the offending was of such seriousness that he could not accede to this.

Court of Appeal

In the Court of Appeal, Ms Lynch sought to appeal against the severity of the 18-month custodial sentence, contending that a non-custodial disposal would have been more appropriate.

The failure of the sentencing judge to nominate a headline sentence was a significant element the appeal. Further, the issue of delay and the fact of having a pending prosecution hanging over one’s head, were of substance. Justice Birmingham agreed and said that for Ms Lynch, who had not “not previously come before the courts, the fact that a prosecution is pending is likely to be the cause of stress, worry and anxiety”.

Counsel for Ms Lynch also highlighted the failure of the sentencing judge to refer to the efforts of Ms Lynch to recompense, who had put aside money every week in circumstances where her family were already in “straitened circumstances”. Justice Birmingham agreed that this was indicative of genuine remorse

Justice Birmingham said that “the Court was left with a degree of uncertainty as to what credit was given for mitigation, though in that regard we recognise the judge’s comments that the sentence would have been substantially longer, or much longer – he used both phrases – had it not been for the presence of the mitigating factors”.

Justice Birmingham said that “the failure to identify a headline sentence coupled with the fact that there was no mention of the pattern of working and saving compensation, and the failure to address the assertion that if there had to be a custodial sentence that Ms Lynch would be advantaged by a sentence of 12 months or less, and disadvantaged by one of 12 months or more, has persuaded the Court, not without considerable hesitation, that it should intervene, though it must be said, the scope for intervention is limited”.

That being said, the Court of Appeal had to take into consideration that this was a serious case involving “a course of wrongdoing, duplicity and criminality”, resulting in “the theft in a systematic fashion, over a significant period, of almost half a million euro”.

Absent the mitigating factors that were present, Justice Birmingham said the case would have merited a sentence of five years imprisonment.

Recognising that Ms Lynch’s husband would “have particular difficulties in coping in the period ahead and that is a factor to be recognised and of which account should be taken”.

In all the circumstances, the Court mitigated the sentence to one of 18 months imprisonment, suspending the final six months “given the combination of the really powerful mitigating factors” present.