Court of Appeal: Solicitor struck off for theft has custodial sentence halved

About this case:

• Judgment:
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Delivering the judgment of the three-judge Court, Mr Justice George Birmingham identified numerous mitigating circumstances in the woman’s favour, including the fact that she had five young children who resided in Belgium and were suffering as a consequence of her imprisonment.

In the Court of Appeal, Ms Jacqueline Durcan appealed against the severity of her sentence – one of twelve months’ imprisonment imposed in the Dublin Circuit Criminal Court for fraudulently withdrawing €250,000 from the client account of her practice.

During the two-year period of offending, Ms Durcan was a solicitor with 20-years of experience who practised as a sole practitioner a family firm in County Mayo which had been established by her grandfather in the 1920’s.

In February 2011, when the Law Society moved to conduct a routine practice audit, Ms Durcan contacted the Law Society and told them about the deficit in her client account.

The Garda Bureau of Fraud Investigation was contacted by the Law Society, and the Court heard that Ms Durcan was cooperative in every way.

The Court heard that Ms Durcan had made a number of property investments which had gone wrong resulting in debts of €6.5 million – however it was of note that when the Garda investigator was summarising the facts of the case for the Circuit Court, he volunteered the fact that when Ms Durcan’s home was searched as part of the investigation, it became apparent to the Gardaí that Ms Durcan’s circumstances were “fairly basic”.

In the course of the investigation, Ms Durcan identified the individuals who were potentially at a loss – all of which were compensated through the Solicitors’ Compensation Fund. It was of significance that the fund in turn had been reimbursed in full by Ms Durcan with the assistance of her mother.

Court of Appeal

In considering the severity of the sentence imposed, Mr Justice George Birmingham had to take into account the aggravating factors present: the large sum of money involved; the fact that the offending went on for a period in excess of two years; and the fact that the offender occupied a position of trust as a solicitor, which meant that it had to be regarded as a serious offence.

Justice Birmingham then considered the “undoubtedly very significant, indeed powerful mitigating factors present” including: Ms Durcan’s full cooperation throughout the investigation; the reimbursement in full; the early plea; the fact that Ms Durcan “was already suffering grievously for her transgressions”; and “the very basic fact that Ms Durcan was the mother of five young children”.

In relation to the mitigating circumstances, counsel for Ms Durcan reminded the Court of “the constitutional provision in relation to the position of the mother in the home”.

In reflecting upon the discretion available to the Court in view of such mitigating circumstance, Justice Birmingham considered The People (Director of Public Prosecutions) v. Aoife Maguire IECA 350 and The People (Director of Public Prosecutions) v. Prior IECA 375 at length.

Notwithstanding mitigation, Justice Birmingham stated that in Ms Durcan’s case the Circuit Court concluded that a custodial sentence was required, and that the Court of Appeal could not regard that conclusion as an error in principle. In the circumstance, the Court would instead consider whether a sentence of shorter duration could meet the situation

Justice Birmingham cited the dicta of Lord Lane in R. v. Bibi 1 W.L.R. 1193, in which the issue of short sentences was addressed. Furthermore, in Professor O’Malley, Sentencing Law and Practice (3rd Ed., Round Hall, 2016) it is emphasised that the “experience of imprisonment, even for a short period, can be remarkably onerous and punitive for an offender who has never been in conflict with the law before and who may, in fact, have been of positive good character”

Finally, the Court considered a report from a senior psychologist who assessed the impact of Ms Durcan’s imprisonment on her family.

In all the circumstances, Justice Birmingham was satisfied that Ms Durcan’s sentencing was a case where there were factors present which meant that any sentence of imprisonment would be particularly burdensome.

In re-sentencing, Justice Birmingham explained that the Court would not depart from the view of the Circuit Court that this was a case for a custodial sentence, but reduced the sentence from one of twelve months to six months.